HKSAR v. CHONG KWONG SAN

HCMA 1246/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1246 OF 1998

(On Appeal From NKC 8294/1998)

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J U D G M E N T

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1. This Appellant appeals against a sentence of 6 months passed for an offence of Possession of an Identity Card Relating to Another Person, contrary to section 7A(1A) Registration of Persons Ordinance, Cap. 177, to which he pleaded guilty in the magistracy.

2. The facts showed that he was stopped by police in the street and that his wallet was searched. Enquiries revealed that he held a two-way permit and had come to Hong Kong on 20th October for a visit; he was permitted to stay until 13th January 1999. As the appellant was stopped on 25th November 1998, he was still within the terms of his visit permit. The Appellant did not produce the identity card to the police, but he told the police, when they found it in his wallet, that he had picked it up in the street a month previously and kept it as a souvenir.

3. The Magistrate took these matters into account. He noted that the Appellant had a clear record in Hong Kong; he agreed that there was no direct evidence that he intended to use the card to prolong his stay in Hong Kong or to gain employment, although he had kept the item without handing it in to the authorities and he did not use the identity card when stopped by the police. The Magistrate stated correctly that he was not aware of any guideline authority for this offence. He took a starting point of 9 months' imprisonment, gave the Appellant 1/3 discount for his plea and sentenced him to 6 months' imprisonment.

4. Counsel argued that the facts in the case indicated that the sentence was too high and manifestly excessive. I had referred to me a number of cases, R. v. Lau Chung Kwan [1987] HKLR 203, R. v. Lam Ping Chun [1989] 1 HKLR 161, R. v. Shamim Nawaz [1994] 1 HKCLR 195 and the case which preceded that, R. v. Ghazanfar Iqbal Mag. App. 654/1993. The cases of Ghazanfar Iqbal and Shamim Nawaz indicate that the reasons for an offender's possession of the identity card are important and, in particular, in Shamim Nawaz it was stated that there had to be a link between the offender's status in Hong Kong and the possession of identity card.

5. In those cases, which both involved Pakistani nationals, the courts imposed sentences of 3 months' imprisonment for offences which were slightly different in nature to the instant case. It appears that there has been a tendency in the past where cases involve overstayers from places other than China, that a lower sentence be passed. Both Shamim Nawaz and Iqbal bear this out to a certain extent. It is difficult to see why that should be so.

6. What I have to consider in this case is whether the Magistrate's sentence is manifestly excessive and as there is no guideline authority, it is difficult to say that this sentence was manifestly excessive, or that a starting point of 9 months' imprisonment is unreasonable. Possessing someone else's identity card is a serious offence, given the potential for abuse of the system that such possession permits.

7. The Magistrate gave the Appellant credit for his guilty plea and clear record and I cannot say that the sentence of 6 months' imprisonment is so manifestly excessive that I should interfere with it. Accordingly, I affirm the Magistrate's sentence.