HKSAR v. YEUNG SAU PING

HCMA 469/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 469 OF 2001

(On appeal from FLC 734/2001)

-----------------------

-----------------------

------------------------

J U D G M E N T

-----------------------

1. The appellant, Yeung Sau-ping, a 35 year old Chinese woman, appeared before Mr Simon Jenkins, Principal Magistrate sitting at Fanling Magistracy, on 6 April 2001. She faced two charges, the first was one of using an identity card belonging to another person on 1 March 2001, the second was a charge of overstaying. The appellant, who was represented by the Duty Lawyer Scheme, pleaded guilty to both charges. After hearing mitigation, the magistrate sentenced her to concurrent terms of 15 months' and 28 days' imprisonment respectively on the two charges she faced. She now appeals against the sentences passed on her.

2. The admitted facts were that a police officer went to a noodle shop in Fanling on 3 April 2000 and found the appellant working in the shop. When the police officer, a woman police officer, asked for proof of identity, the appellant produced her two-way permit which revealed that she had overstayed in Hong Kong since 14 June 2000. This gave rise to the 2nd charge. Further inquiries revealed that the appellant had produced a Hong Kong identity card on 1 March 2001 when she sought employment at the noodle shop. This gave rise to the 1st charge.

3. The proprietor of the shop produced a copy of the identity card which the defendant had produced to him. When cautioned, the appellant admitted that she had stolen her younger sister's identity card and used it to seek employment at the shop.

4. The appellant had a clear record. The magistrate was told by the lawyer representing her that the appellant had originally come to Hong Kong legally and after being in Hong Kong for some time thought about seeking employment in order stay with her sister, who is a Hong Kong resident. She had to support her family in the Mainland, which consists of three teenage children and her mother-in-law. The magistrate was asked to be as lenient as possible.

5. In advancing her appeal this morning, the appellant essentially repeats the matters she placed before the magistrate.

6. In sentencing the appellant on the 1st charge, the magistrate bore in mind what was said by Barnett J in R v Shamim Nawaz [1994] 1HKCLR 195. That was a case in which the appellant successfully appealed against a sentence of 15 months' imprisonment imposed at trial for an offence similar to that the 1st charge laid against this appellent. At page 198 of the report the learned judge said the following:

"In my judgment, it matters not whether the offender is an illegal immigrant or an overstayer. The real question is the intention or purpose behind the possession of another's identity card. In other words, is there a link between the offender's status in Hong Kong and the identity card. The court must ask itself whether the offender has the card to obtain employment or otherwise further his remaining in Hong Kong. If the answer to that question is yes, a sentence of 15 months' imprisonment upon a guilty plea cannot be said to be excessive. If, however, the answer is no, and no link is established between the offender's status in Hong Kong and the identity card, the offence in relation to the identity card falls to be treated as an unconnected offence."

7. In this case, the appellant admitted using her sister's identity card as opposed to possessing a lost one, as was the case in Nawaz. By producing the card to the shop owner to gain employment, there was a link between the defendant's status in Hong Kong as an overstayer and the identity card. In those circumstances, the authorities make it clear that the 15 months' sentence of imprisonment was the appropriate sentence for the 1st charge. There is nothing in the defendant's personal circumstances which enabled the magistrate to reduce it. The authorities make it clear that that is the appropriate sentence even after a guilty plea.

8. The 2nd charge merited a short custodial sentence. The magistrate took as a starting point 6 weeks' imprisonment and reduced that to 28 days' imprisonment to reflect the appellant's plea and clear record. He ordered that the appellant serve both sentences concurrently, which he was correct in doing.

9. The sentences are neither manifestly excessive nor contrary to principle. The appellant's appeal against sentence is dismissed.