HKSAR v. ZO CHEN CHI

HCMA956/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.956 OF 2006

(ON APPEAL FROM KCCC 5474 OF 2006)

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REASONS  FOR  JUDGMENT

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1. This is an appeal by the appellant against the sentences imposed upon her after plea by the Chief Magistrate at Kowloon City Magistrates’ Court on 13 September this year for the offence of possession of a forged identity card in the name of another person, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap.177 (Charge 1), and remaining in Hong Kong without lawful authority, contrary to section 38(1)(b) of the Immigration Ordinance, Cap.115 (Charge 2).  On each charge she was sentenced to 15 months’ imprisonment.  The Chief Magistrate ordered that six months of the sentence on Charge 2 run consecutively to the sentence on Charge 1, resulting in an overall term of 21 months’ imprisonment.

2. Mr Wong for the appellant does not complain about the terms of 15 months’ imprisonment imposed on each charge.  The ground of appeal is simply that it was wrong to order that six months’ imprisonment of the 15 months imposed in respect of Charge 2 be served consecutively to the sentence on Count 1.  He argued that both sentences should be served concurrently bearing in mind that both offences were committed at the same time and place, and that a substantial element in sentencing both offences was the appellant’s unlawful presence in Hong Kong.

3. The basic sentencing guideline for the offence of unlawful remaining in Hong Kong remains 15 months after plea : see R. v. So Man King [1989] 1 HKLR 142.  In that case the court said this :

“      The guideline already allows for the almost inevitable plea of guilty, but voluntary surrender to the authorities should warrant a substantial discount, and strong humanitarian considerations should always be honoured, even to the extent sometimes of suspending whatever prison sentence is otherwise thought appropriate.  On the other hand the Court should take into account, by upward adjustment, any previous unlawful entry, whether resulting in prosecution or not, and other circumstances which may aggravate the offence, such as the actual use of a forged or other person’s identity card to obtain some particular benefit.  (my emphasis)

4. The Court of Appeal, in that case, equated the offences of unlawful remaining and the offences of unlawful possession and use of identity card as being offences the substantial element of which was unlawful presence in Hong Kong.  It was of the view that the guideline sentence of 15 months might be adjusted upward if a forged identity card was actually used to obtain some benefit.

5. Deputy High Court Judge Line in HKSAR v. Chau Yuet Keung, HCMA910/2002, a case where the defendant had been charged with unlawfully remaining and possession of a forged identity card in circumstances where the defendant had not used the forged identity card when stopped by a police officer and when it had simply been found on him, took the view that concurrent sentences of 15 months’ imprisonment should be imposed.  This view is consistent with the judgment of the court in So Man King.

6. In the case before me, the Chief Magistrate took the view that this was a case where the appellant had used the forged identity card.  He said this :

“      The appellant did produce the forged identity card to the police officer during investigation.  She wanted to cover up her identity. ….”

7. This was not a case however where the prosecution had alleged a use by the appellant of the card in the charge they brought against her.  Section 7A(1) of the Registration of Persons Ordinance, Cap.177 is in the following terms :

“      (1)   Any person who without lawful authority or reasonable excuse uses or has in his custody or possession a forged identity card or other document issued under this Ordinance commits an offence ….”

A person can commit this offence either by using the card or by having it in his custody or possession.

8. The charge in this case simply alleged that the appellant had the forged identity card in her possession not that she had used it.

9. Moreover, the facts which the appellant admitted left an element of ambiguity as to whether she had produced the card in order to mislead the officer as to her identity and the fact she was lawfully entitled to be in Hong Kong.  The facts which she admitted read as follows :

“…. Upon questioning, Deft produced one HKID card …. with portrait resembled her face but the quality & lining of the ID was different from genuine.  Upon questioning, Deft claimed she was an II who came to HK on 2006-09-09 by boat. ….”

This passage does not specify what the questions were that preceded the production of her identity card.  If she had been asked : “What have you got in your handbag?”, the fact that she produced the identity card would not necessarily lead to an inference that she had produced it to mislead the officer, nor is it clear beyond doubt that she had not admitted that she was an illegal immigrant before she produced the card.  In such circumstances it would be unsafe to assume that the appellant was admitting that she had used the forged identity card, particularly when she had not been charged with using it and, therefore, might not have had her attention focused on that particular issue.

10. In view of these doubts, I consider the two sentences should have been ordered to run concurrently.

11. Although Mr Wong has not sought to argue that the sentences of 15 months’ imprisonment on the charge of possession of the forged identity card was too long, I consider it was in the light of the observation that I have made.

12. It is clear from his Reasons for Sentence and the fact that he recited the words of Yeung JA in HKSAR v. Li Chang Li, HCMA935/2004 :

“      If the offender has actually produced or used a forged identity card or another person’s identity card in order to cover up his identity, work illegally or illegally extend the length of his stay in Hong Kong, then 15 month’s imprisonment should be the starting point upon a plea of guilty”

that the Chief Magistrate based the sentence of 15 months’ imprisonment on the basis that the forged identity card was produced or used to cover up the appellant’s identity. 

13. The preceding sentence in the judgment of Yeung JA in Li Chang Li was to the effect that in the case of simple possession of a forged identity card, the starting point should generally be 12 months’ imprisonment upon a plea of guilty.

14. For the above reasons, I allow the appeal against sentence to the extent that the sentence on the charge of possession of a forged identity card be reduced to 12 months’ imprisonment and that both sentences be ordered to run concurrently.

15. I should add that in my view if the prosecution seek to rely upon the fact that a defendant has used a forged identity card as a factor relevant to sentence, they should allege that in the particulars of the charge they bring.