R. v. EREBERTO F. BRILLO

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.449 of 1996

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J U D G M E N T

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1. The appellant pleaded guilty to possession of an identity card relating to another person and breach of condition of stay. He was sentenced to 15 months' imprisonment and one month's imprisonment respectively, both sentences to run concurrently. He now appeals against sentence.

2. It appears that on 27th February 1996, the appellant was stopped by a police officer, who found him acting suspiciously in Wan Chai. Upon request by the officer, the appellant produced an identity card. Upon enquiries by the officer with the relevant authorities, it was found that the identity card was declared lost and became invalid. The appellant then admitted that he picked up the identity card two months before then. It turned out that he had visited Hong Kong in September 1994 and was permitted to stay until 3rd October 1994.

3. The appellant urged upon me that his family was poor, that he was the sole breadwinner of his family and that this was the first offence which he committed in Hong Kong. He also disclosed to me that for the last 11/2 years he had been living on the favours of his friends because he could not find a job.

4. The learned Magistrate relied on the case of R. v. Shamim Nawaz in which Barnett, J. said :

"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 plea of guilty cannot be said to be excessive."

5. In the present case, the appellant had overstayed for 11/2 year. I do not believe that he had been hanging around for that period without a job and living on the mercy of his friends. When I looked at the identity card found in his possession, it was in the name of a person called Alexander A. Villegas, who appears to be a foreigner like the appellant. In my view, therefore, the learned Magistrate is perfectly entitled to draw the conclusion that the appellant had in possession of this card to further his remaining in Hong Kong. This case, therefore, falls completely within what was anticipated by Barnett J.

6. I would entirely agree with the assessment of the learned Magistrate. I see absolutely no mitigating factor in the present case. There is no special reason for me to depart from the usual tariff. The appeal is therefore dismissed.