HKSAR v. CHAU YUET KEUNG

HCMA 910/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 910 OF 2002

(ON APPEAL FROM TMCC 2477/2002)

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J U D G M E N T

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1. This is an appeal against sentence in which Mr McGowan appears, instructed by the Department of Legal Aid. There was an appeal against conviction in which the appellant appeared in person but he, today, has abandoned that.

2. The appellant pleaded guilty to remaining in Hong Kong without the authority of the Director of Immigration, contrary to section 38(1) of the Immigration Ordinance, and to the possession of a forged identity card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap. 177. For the unlawful remaining, he was sentenced to 15 months' imprisonment. In respect of the possession of the forged identity card, the Magistrate took a starting point of 18 weeks and reduced that to 12 weeks and imposed that consecutively to the 15 months.

3. What Mr McGowan today seeks to argue before me is that the sentence for the possession of the forged identity card, even if it is more than the 12 weeks imposed, should run concurrently with the sentence for remaining in Hong Kong. He says that on the basis that the identity card was not used when the appellant was stopped by a police officer. The appellant admitted he was an illegal immigrant and it was only upon search at the police station that the false identity card was found upon him. He had not proferred it to the police officer in an attempt to pass himself off as a bona fide Hong Konger.

4. The situation is a very common one, there having been very, very many cases of exactly this nature before the Magistrates Court over the years. I can perhaps say it was always my experience when I was on the bench in the Magistrates Court that, in the absence of any humanitarian grounds, there were two sentences of 15 months' imprisonment imposed concurrently. I also understood that to be the practice of those with whom I sat.

5. I am told by Mr Cheung, who appears for the respondent today, that the present practice is by no means a uniform one and that some magistrates add to the sentence of 15 months in these circumstances, and some do not. If that is right, it would appear to be unfortunate because in this area of sentence there has been, in the absence of humanitarian grounds of exceptional nature, uniformity in sentencing.

6. Leaving aside what I perceive to have been the practice, it seems to me one has to look no further than the guiding case in this area of the law, So Man King. I read from the headnote, but it accurately summarises the judgment. It says this:

"No significant legal or moral distinction was to be made between the offence of remaining in Hong Kong unlawfully and the related offences of unlawful possession and use of identity cards. The substantial element in sentencing for all three offences was unlawful presence in Hong Kong."

7. The point was made by the Acting Chief Justice in that case that if the card had been used, that would have been an aggravating feature justifying something longer than the 15 months. Of course, one can look at a lot of decisions that have been made over the years by single judges hearing appeals from Magistrates Courts, but faced with an authority from the Court of Appeal dealing directly with the point in question before me, it seems to me unnecessary to look any further.

8. Mr Cheung for the respondents put up a spirited defence of the Magistrate's sentence, but he would not really be drawn on the larger question of whether the Department of Justice really did want longer sentences in these circumstances. I am aware of nothing that would make it right to extend the 15 months for cases such as this.

9. Accordingly, I shall alter the sentence on Charge 1. I shall increase it to 15 months but I shall make it concurrent to the sentence on the 2nd charge.