R. v. YEE YICK HONG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.351 OF 1996

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J U D G M E N T

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1. The Appellant was convicted of two offences : (1) possession of a forged identity card; (2) remaining in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully.

2. He was sentenced to 6 months imprisonment on the 1st Charge and 15 months on the 2nd Charge, sentences to run consecutively.

3. He now appeals against sentence.

4. The ground of appeal is mainly that the sentences should not run consecutively. It is accepted that the normal sentence after a plea for the 2nd Charge is 15 months unless there are strong humanitarian grounds for a departure from it and the normal sentence for 1st Charge is 6 months. Mr Wong for the Appellant referred to a number of cases.

5. In R. v. Chan Chun MA693/94, the appellant there was sentenced to 18 months imprisonment for possession of a forged identity card and 15 months for remaining in Hong Kong without authority, concurrent. The sentencing guidelines of So Man King (1989) 1 HKLR 142 were referred to and stated that the policy behind the sentence is deterrence. Litton JA said :

"Plainly a paramount policy consideration behind the guideline is the deterrent effect of the 15 months' imprisonment. So the principle was laid down in So Man King for this to be the normal term of imprisonment after a guilty plea. It is worth emphasising that in such cases the police would not normally charge a first offender unless he or she had committed another offence together with that of unlawfully remaining in Hong Kong. The exception is where they are found at a place of work or in a vice establishment where, even without the possession of a forged identity card, they would normally be prosecuted."

Litton JA found no circumstances that this normal sentence should not be adhered to in that case. The sentence of 18 months imprisonment was reduced to 15 months imprisonment.

6. R. v. Chan Wun Sang and Anor (1992) HKLR 46 held that the normal sentence for possession of a forged identity card was 15 months and if it was used to obtain some particular benefit this may enhance the standard sentence.

7. In both cases, the sentences for possession of a forged identity card and for remaining in Hong Kong without authority, are concurrent sentences. The line of authorities have shown that the normal sentences for these offences would be 15 months in total except where there are special circumstances and the sentences would normally be concurrent sentences.

8. The magistrate in sentencing the Appellant said :

"Taking into account the facts of the case and all material put to the court it came to the view that 6 months' imprisonment on Count 1 and 15 months on Count 2 did justice to the case. There is no principle from which the court could make the sentences consecutive. The Appellant was sentenced to a total of 21 months' imprisonment."

9. It is not clear from his findings why the magistrate made the two sentences consecutive. Mr Pang for the Crown submitted that unless there were exceptional grounds, the sentences should be concurrent.

10. There being no ground to make them consecutive, the appeal is allowed to the extent that the sentences of 6 months and 15 months are to run concurrently.