THE QUEEN v. WONG LEUNG-KWONG

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HEADNOTE

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Using identity card of another person proper sentence - Possession of forged identity card distinguished

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 738 of 1986

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BETWEEN

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JUDGMENT

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1. The appellant was convicted, under Regulation 12(3) of the Registration of Persons Regulations, of using the identity card of another person and was sentenced to 12 months imprisonment.

2. He pleaded not guilty but in his evidence he admitted that he had bought the card in China before coming to Hong Kong and getting a job in a restaurant.

3. Counsel were unable to assist the court as to the range of sentences imposed by magistrates in respect of offences under this regulation. The maximum sentence is a $5,000 fine and imprisonment for 2 years.

4. The offence of possessing a forged identity card contrary to Section 7A(1) of the Ordinance carries a maximum sentence on summary conviction of a $20,000 fine and imprisonment for 2 years. In R. v. CHAN Ming⁽¹⁾, the learned Chief Justice, following the guidelines set out by the Court of Appeal in Criminal Appeal No. 934 of 19$1, confirmed that, in the absence of strong humanitarian considerations, the proper sentence for that offence should be immediate imprisonment for about 15 months.

5. A distinction must clearly be drawn between the two offences, although the facts of this case reveal a state of affairs that also warrants a deterrent sentence. If prospective illegal immigrants can buy a lost or stolen identity card over the border, in which the photograph of the holder bears a resemblance to themselves, there is no need to look for a forged one.

6. The magistrate in his statement of findings had second thoughts and considered on reflection that the sentence should have been one of 3 months. I think this is too lenient. In my judgment the proper sentence, on the facts of this case, is 6 months imprisonment.

7. The appeal is allowed and the sentence varied accordingly.

(1)    C.A. No. 353 of 1983