HKSAR v. CHEN RU CHU

HCMA450/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.450 OF 2003

(ON APPEAL FROM WSCC 463 OF 2003)

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J U D G M E N T

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1. This is an appeal against sentence only.

2. The appellant was convicted on his own plea of an offence of possession of a forged identity card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap.177, being the first charged offence, and of a breach of his condition of stay in Hong Kong by overstaying for a period of three months, contrary to section 41 of the Immigration Ordinance, Cap.115, being the second charged offence.

3. In respect of the first charged offence, he was sentenced to 15 months' imprisonment. In respect of the second charged offence, he was sentenced to 28 days' imprisonment. Both sentences were ordered to run concurrently. That was a total of 15 months' imprisonment. He says these sentences are too severe.

4. The facts of the case were that the appellant was stopped by a police for an identity check in Aberdeen on the date of the first charged offence. The appellant produced to the police the identity card, the subject of that offence. At that time, the appellant had illegally overstayed in Hong Kong by three months. He had originally entered Hong Kong by way of a two-way permit.

5. The magistrate, before sentencing the appellant in respect of the first charged offence, had satisfied himself properly on the materials before him that the appellant's use of the identity card by producing it to the police meant the appellant possessed it to assist his further unlawful stay in Hong Kong.

6. He therefore considered a sentence of 15 months' imprisonment appropriate. That is in accordance with R. v. Shamin Nawaz [1994] 1 HKLR 195. It is also within the parameters of HKSAR v. Chan Man Mo [2001] 1 HKLRD 121.

7. The sentence imposed in respect of the second charged offence, given the overstay period of three months, also cannot be said to be excessive.

8. Mr Tam for the prosecution says on the authority of Chan Man Mo that because the appellant produced the forged identity card to the police officer who wished to check his identity a sentence greater than 15 months' imprisonment should be imposed in respect of the first charged offence and he urges me to do so. I respectfully decline. The present appellant is unrepresented. He brought his appeal because he felt aggrieved by other offenders who he says offended in the same manner as he did receiving lesser sentences than he. No doubt he misunderstood the variation of sentence thought appropriate to allow for the variation of circumstances occurring in identity card offences. I do not hold that against him. But there is no merit in his appeal and it is dismissed.