THE QUEEN v. TAO YUET KAU

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1082 OF 1987

______________

______________

J U D G M E N T

______________

1. The Appellant pleaded guilty to the offence of uttering an identity card relating to another person and the learned magistrate sentenced her to imprisonment for 15 months. She now appeals against that sentence. The principal ground of appeal was in effect an appeal to this court to extend mercy to the Appellant on the basis that she has been in Hong Kong now for at least 6 years and has during that time proved to be a good and useful citizen. In addition, there is medical evidence that she suffers from a lung condition and which is subject to recurrence.

2. These matters were before the learned magistrate and he considered them before he decided to pass the sentence. It is clear from the learned magistrate's findings that he decided that imprisonment for 15 months was appropriate because it followed the guidelines of the Court of Appeal laid down in a decision since followed by two decisions in the High Court on magistracy appeals.

3. The maximum term of imprisonment for this offence is two years. In R. v. LAW Shui-leung (Magistracy Appeal No.797 of 1986) O'Connor, J., having looked at a table of sentences which had been imposed by magistrates over the period of 21 months before his decision, noted that there was an upward trend in the length of the sentences imposed for this offence. He took the view that using another person's identity card in order to masquerade as a person entitled to be in Hong Kong was in the band of serious offences. He concluded that a sentence of 15 months' imprisonment would normally be appropriate.

4. In my view there would be no merit in this appeal were it not for the fact that the Legal Aid Department has obtained from the Investigation Division of the Immigration Department a table of sentences imposed by magistrates at Western Magistracy between the 1st February 1987 and the 31st January 1988 in respect of this offence of using an identity card relating to another person. The table shows that at Western Magistracy, which deals with most of these cases because most of them are brought by the Immigration Department, 95 such cases were dealt with during that period. In 60 of those cases - that is in more than 60% of them - the sentence was either 6 months or 9 months imprisonment. There were only 10 of those cases of. imprisonment of 15 months or more. But, in the table no distinction is made between first and multiple offenders. As O'Connor, J., pointed out in his judgment such tables can be misleading because they can give a distorted picture.

5. The table before me, unlike the table before O'Connor, J., has not been compiled for the purpose of showing whether there is an upward or downward or stable trend over the period. What is striking about it, however, is that, in more than 60% of the cases, the magistrates court, charged with the responsibility the dealing generally with these cases, has not followed the tariff laid down by the Court of Appeal. That, of course, is no ground for my supporting that departure.

6. When this table was first brought to my notice I found the figures so startling that I adjourned the further hearing of this matter so that the Crown could discover any explanation for this consistent departure from the norm, particularly since the Attorney General has not sought to review the sentences. I am now informed that the Attorney General was not aware of this departure and that had he been he would have sought a review.

7. There is, therefore, no sound legal reason why I should allow this appeal. If the Appellant's offence had been detected by an officer of the Investigation Division of the Immigration Department, she would have been brought before Western Magistracy. The table indicates that she would then almost certainly have received a sentence of no more than 9 months imprisonment as a first offender. It was not, however, detected by the Immigration Department but by the Police Department. Because she was detected on Kowloon side she was brought before a court and received the sentence which accords with the tariff laid down by the Court of Appeal.

8. This Appellant has received a sentence 6 months longer than the norm because she was detected on the wrong side of the harbour.

9. I think that it is of importance for the administration of justice, and for the face of juctice, that she should not go away from this court with the feeling that she has been harshly dealt with because she happened to be on the wrong side of harbour when she was caught with the identity card of another person. It is for that reason and for that reason only that I allow the appeal, quash the sentence and substitute therefor a sentence of imprisonment for 9 months.

10. I think that the table of sentences ought to be brought to the attention of the Attorney General so that magistrates on both sides of the harbour may know whether a new tariff is coming into existence or whether the old tariff should continue to apply.