HKSAR v. CHAU PO CHU

HCMA 229/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 229 OF 1999

(On appeal from TWCC 211 of 1999)

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J U D G M E N T

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1. The Appellant, a 39 year old female, pleaded guilty at Tsuen Wan Court to an offence of possession of a forged identity card contrary to s. 7A(1) of the Registration of Persons Ordinance, Cap. 177 (being charge 1) and to an offence of breaking a condition of her stay in Hong Kong contrary to s. 41 of the Immigration Ordinance, Cap. 115 (being charge 2).

2. She was sentenced to 12 months imprisonment in respect of the 1st charged offence and to 1 months imprisonment in respect of the 2nd charged offence both sentences to be served concurrently.

3. She appeals those sentences on the grounds that they are too severe.

4. The admitted facts of the case were that on 19 January this year police officers who were conducting an identity card check at a bus-stop on Lantau Island stopped the Appellant and asked to see her identity card.

5. She produced a forged identity card which she had purchased in Shenzhen for RMB2,000. The officers detected the forgery and arrested her.

6. She had originally entered Hong Kong under her Chinese 2 way permit which had however expired some 5 days earlier on the 14 January 1999.

7. In respect of the 1st charged offence the learned magistrate after allowing for the Appellant's plea of guilty and her mitigation considered imposing a sentence of 15 months imprisonment.

8. That sentence is in line with considerable Hong Kong authority including R. v. Shamin Nawaz (1994) 1 HKLR 195 which makes clear that a sentence of 15 months after plea is appropriate where, as in this case, the Appellant's possession of the forged identity card has the purpose or use of allowing the possessor more easily to continue their unlawful stay in Hong Kong.

9. In the present case the learned magistrate, presumably because of the family circumstances of the Appellant put before him in mitigation which same matters have been put again before me today by the Appellant, further reduced the Appellant's sentence on the 1st charged offence to one of 12 months imprisonment.

10. In respect of the 2nd charged offence the learned magistrate's sentence of 1 months imprisonment was imposed by him after he had considered the circumstances of the Appellant's overstaying the expiration date of her 2 way permit.

11. There are a large range of factual circumstances which may go towards supporting an offence under s. 41 of Cap. 115. Sentences imposed must accordingly vary to reflect those circumstances. I can see nothing wrong in principle in the sentence of 1 months imprisonment nor in the level of that sentence imposed in respect of this offence.

12. Indeed it may be regarded as lenient considering that the Appellant's purchase of the forged identity card was no doubt with an intended unlawful stay in Hong Kong in mind after the expiration date of her permit had been passed.

13. The learned magistrate in ordering the sentences to run concurrently adopted a proper course, as a consideration in the sentence already imposed by him in respect of the Appellant's possession of a forged identity card was her use of that card to facilitate her unlawful stay.

14. The sentences were not too severe. The magistrate allowed some measure of mercy towards the Appellant in addition to her mitigating plea of guilty. This appeal is dismissed.