HKSAR v. LI LIHUA (AKA LI LEON)

HCMA 98 & 99/2019

[2022] HKCFI 412

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 98 and 99 OF 2019

(ON APPEAL FROM ESCC 1798 OF 2015 and ESCC 2794 OF 2018)

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J U D G M E N T

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1.  The Appellant pleaded guilty before Magistrate Mr Lee Siu Ho and was sentenced to a total of 18 months’ imprisonment in respect of the following four offences:

(a)  Charge 1 of ESCC 1798/2015: Using a forged identity card, contrary to s. 7A of the Registration of Persons Ordinance (Cap. 117)  (“Offence 1”);

(b)  Charge 2 of ESCC 1798/2015: Failing to surrender to custody as shall have been appointed, contrary to s. 9L(1)  and (3)  of the Criminal Procedure Ordinance (Cap. 221)  (“Offence 2”);

(c)  Charge 1 of ESCC 2794/2018: Escaping from lawful custody, contrary to Common Law (“Offence 3”); and

(d)  Charge 4 of ESCC 2794/2018: Resisting a police officer, contrary to s. 63 of the Police Force Ordinance (Cap. 232)  (“Offence 4”).

Facts

2.  The Magistrate summarized the facts as follows:

“ESCC 1798/2015

4.  The facts the Defendant admitted are that, on 8 Jun 2015, whilst he was applying for a visa at US Consulate General Hong Kong, he showed the subject forged identity card to a visa clerk (PW1).  Since it was of poor quality, PW1 reported to her colleague and the case was reported to police.  Enquiries revealed that the number on the said card was invalid. Police officer arrested the Defendant and, under caution, he admitted the offence.

5.  On examination by Government Laboratory, the said card was found to be devoid of security features as exemplified in the control card and printed with an inkjet printer.

6.  The Defendant was charged on 8 Jun 2015 and granted court bail by High Court.  On 26 Oct 2015, he attended Eastern Magistracy for trial.  The trial was adjourned for lunch and he was ordered to return at 1430 hours to continue the trial.  But he failed to surrender to custody as appointed by the court.  Warrant of arrest was issued by the court in the late afternoon of the same day.

ESCC 2794/2018

7.  The facts the Defendant admitted are that, on 14 Nov 2018 when he entered Hong Kong at the airport, he was arrested by police in connection with a case of his jumping court bail in 2015.  While being detailed, he requested for medical treatment and was admitted to public hospital on 15 Nov 2018. 

8.  Shortly before 0825 hours on 16 Nov 2018, the Defendant requested to go toilet with door closed.  At 0825 hours, while a doctor enquired for his whereabouts, a police officer discovered him missing from the toilet whilst its suspended ceiling was broken.  Realizing that he had climbed to the adjacent ward via the suspended ceiling and fled, the incident was reported.  The Defendant had no phone, no wallet, no cash and no luggage with him when he escaped from the hospital.  He was in hospital uniform.

9.  Subsequent investigation revealed that the Defendant stayed in a hotel and an ambush operation was mounted.  At around 1940 hours on 17 Nov 2018, Detective Sergeant 51961 (PW4)  & his colleagues spotted him at a podium of the said hotel.  Upon being approached, the Defendant fled and struggle ensued.  At that time, PW4 and his party revealed their police identity to him, during which he was still struggling with PW4 in order to flee.

10.  Shortly after that, the Defendant was subsequently subdued and arrested by another officer who came to reinforce.  PW4 sustained injuries while struggling with the Defendant and was sent to hospital for medical treatment.  PW4 was found to have sustained abrasion of right hand.”

Sentence

3.  For Offence 1, the Magistrate adopted a starting point of 15 months’ imprisonment and gave a 20% discount for the belated guilty plea.  The sentence was thus 12 months’ imprisonment.

4.  For Offence 2, the Magistrate adopted a starting point of 4½ months’ imprisonment and gave a full 1/3 discount for the Appellant’s guilty plea.  The Appellant was sentenced to 3 months’ imprisonment.

5.  The Magistrate ordered the sentence for Offence 1 to run consecutively with that for Offence 2.

6.  For Offence 3, the Magistrate adopted a starting point of 4½ months’ imprisonment and gave a full 1/3 discount for  the Appellant’sguilty plea.  The Appellant was sentenced to 3 months’ imprisonment.

7.  For Offence 4, the Magistrate adopted a starting point of 3 months’ imprisonment and reduced it by 1/3 for the guilty plea to 2 months’ imprisonment.

8.  The Magistrate ordered the sentences for Offences 1, 2 and 3 to run consecutively, and the sentence for Offence 4 to run concurrently with that for Offence 3, resulting in a total sentence of 18 months’ imprisonment.

Appellant’s Background

9.  The Appellant is 34 years of age.  He has studied medicine in, and obtained his degree from, Cambridge University in the United Kingdom and is a medical doctor there.

10.  His occupation at the time of sentence was a businessman.  He was the officer-in-charge of a locally listed public company.

11.  The Appellant is single.  He is the father of 4 children all born in July 2013 and aged 5.  His youngest son (LI Lionel)  (Lionel), was born in the United States.  He suffers from infantile spasm and secondary epilepsy.

12.  The Appellant has no siblings.  His father (LI Fuxi), aged 60, is handicapped.  His mother (YU Tian Ling), aged 61, also suffers from Alzheimer’s disease. 

13.  The Appellant has a clear record.

Grounds of Appeal

14.  The Appellant represented himself in this appeal.

15.  In his Perfected Grounds of Appeal, he raised a total of 10 grounds of appeal, which can be divided into three main categories:

(a)  Grounds 1-5 allege that the sentence imposed for Offence 1 was too high;

(b)  Grounds 6-8 allege that the Magistrate erred in ordering the sentences for Offences 1-3 to be served consecutively and that the Magistrate failed to consider the totality of the final sentence imposed; and

(c)  Grounds 9-10 allege that the Magistrate refused to grant mercy to the Appellant for his exceptional family circumstances.

16.  However, at the appeal hearing, the Appellant indicated that he now only relies on the Grounds in relation to Offence 1.

Discussion

17.  At the hearing before the Magistrate, counsel for the Appellant explained that it was not necessary for the Appellant to possess a Hong Kong identity card for application of a US visa as the Appellant was a Mainland citizen.

18.  Counsel submitted that the Court of Appeal’s judgment of HKSAR v Li Chang Li [1],which aims essentially at curbing illegal employment in Hong Kong, does not apply to the present case.  In any event, such sentencing guideline in Li Chang Li is not straight jacket and the court must have regard to individual circumstances of each case to exercise its discretion. 

19.  In his Reasons for Sentence, the Magistrate mentioned that he accepted the mitigations advanced for the Appellant by his counsel but stated that by producing the forged identity card to the US Consulate, the Appellant “jeopardized or put in jeopardy Hong Kong system of registration of persons and issue of identity cards” and therefore, the circumstances under which Offence 1 was committed is still serious.

20.  Counsel for the Appellant also stressed in mitigation that the Appellant’s aged and ill parents are unable to take care of his 4 young children, who are presently in Beijing under the care of 2 families of Defendant’s friend/colleagues.  They are having difficulty of providing further assistance to the Defendant.  And Lionel has serious illness which, if not properly cared for during epileptic attacks, could be life-threatening.  And the Defendant himself is required by hospital to sign consent form for providing urgent treatment to Lionel in case of need. 

21.  Counsel urged the Magistrate to impose a lighter sentence on humanitarian ground.

22.  However, in his very detailed and well written Reasons for Sentence, the Magistrate did not mention anything about whether he considered it appropriate to reduce the sentence for Offence 1 on humanitarian ground.

23.  In my judgment, the starting point of 12 months’ imprisonment for Offence 1 adopted by the Magistrate was excessive. 

24.  I have examined the subject forged identity card. It was in such a poor quality that no reasonable man could have thought that it can be used to deceive any person into believing that it is genuine.  Although, as noted by the Magistrate, poor quality of the forged identity card may not in itself justify a lighter sentence, I am of the view that it does reflect that the decision of the Appellant to produce the identity card when he was asked whether he has one was a spontaneous mistake made in split seconds.  I accept that it was out of the stress and worries about the situation of his children that the Appellant had made this foolish mistake.

25.  Besides, the Magistrate did not consider sufficiently the situation of the Appellant in relation to his children that justifies humanitarian treatment.

26.  In the circumstances, I consider 6 months’ imprisonment an appropriate starting point for Offence 1 having taken into account the above reasons.

Disposition

27.  The Appellant’s appeal for sentence is allowed. The sentence for Offence 1 be replaced by a term of 6 months’ imprisonment.  The total sentence is therefore reduced to imprisonment for 12 months.