HKSAR v. LAU SAU KING

HCMA 701/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 701 OF 2004

(ON APPEAL FROM KCCC 5278/2004)

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REASONS  FOR  JUDGMENT

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Introduction

1.  On 23 September 2004, I allowed the Appellant, Lau Sau King’s appeal against sentence and reduced her sentence from 12 months' imprisonment to 8 months’ imprisonment.  I now set out the reasons for my decision.

Background

2.  The Appellant was convicted on her own plea on 31 May 2004 by Mr. Colin Mackintosh, Magistrate, sitting at Kowloon City Magistrates Court, of an offence of possession of a forged identity card, contrary to section 7A(1) of the Registration of Persons Ordinance (Cap 177).  The Magistrate sentenced her to serve 12 months’ imprisonment for that offence.  He gave her credit for her previous good character and plea of guilty.  It was against that sentence that the Appellant brought this appeal.  Miss Barbara Wong of counsel represented her.

Facts

3.  The Appellant was a Mainlander holding a two-way permit.  She arrived, lawfully, in Hong Kong on 14 April 2004.  Two days later, on 16 April 2004 in the early hours of the morning, she was stopped by a Woman Police Constable who requested her to provide proof of identity.  She produced a forged Hong Kong Identity Card to the officer.  Suspecting that the card was a forgery, the officer arrested the Appellant.  After caution, the Appellant admitted that she had bought the card and intended to use it to look for a job in Hong Kong.  The card was subsequently confirmed to be a forgery.

Magistrate’s reasons for sentence

4.  The Magistrate, in his reasons for sentence, said that he based the sentence of 12 months’ imprisonment on the authority of R v. Shamim Nawaz [1994] 1HKCLR 195, a case concerning the possession of a Hong Kong Identity Card belonging to another.  In that case Barnett J said, at page 198 (10-15):

“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 plea of guilty cannot be said to be excessive.  If, however, the answer is no, and no link can be established between the offender’s status in Hong Kong and the identity card, the offence in relation t the identity card falls to be treated as an unconnected offence.”

5.  The Magistrate found that the Appellant’s possession of the forged card was designed to further her stay in Hong Kong, and that there was no difference between her actually using it to obtain employment and possessing it with the intention of doing so.  He remarked that the possession of forged Hong Kong Identity Cards by Mainlanders in Hong Kong is prevalent.  And was of the opinion that the possession of a forged card with the offender’s photograph on it was at least as serious as, if not much more serious than, the possession of another’s card because of the inevitable deliberation behind such possession.

Grounds of appeal

6.  On the Appellant’s behalf, Miss Wong argued that the Magistrate failed to consider, sufficiently or at all, the facts of the case and apply them to what are said to be the ‘principles’ in HKSAR v. Chen Hanwei HCMA 148 of2003, HKSAR v. Yu Wed Hao HCMA 737 of 2003 and HKSAR v. Xu Houde HCMA 562 of 2003 (all unreported).  Miss Wong also complained that the Magistrate concluded, wrongly, that the mere presentation of a forged Hong Kong Identity Card to the officer, without more being done, or said, by the Appellant, was an aggravating factor.  This is because he took no account either of the circumstances under which the Appellant presented the forged card to the officer, or the various ranges of circumstances under which an offender can present a forged identity card to a police officer who is conducting an identity check.  Here he is said to have failed to consider what are said to be the ‘principles’ in HKSAR v. Muhammad Nasarullah HCMA 531 of 2002 (unreported).  Miss Wong also charged the Magistrate with erring in concluding that general deterrence is required for this offence.

7.  In support of her extensive written argument Miss Wong cited no less than 17 authorities dealing with cases involving offences contrary to sections 7A(1) and 7A(1A) of the Registration of Persons Ordinance and, in addition, provided me with summaries of the sentences imposed in 16 others. 

Discussion

8.  Miss Wong’s Stakhanovite capacity for hard work has persuaded me that, with one possible exception, there are no ‘principles’ to be gained from any of the cases she cited to me.

9.  The legislature has provided exactly the same maximum punishment, both on summary conviction and conviction on indictment, for an offence of unlawful possession of a forged Hong Kong Identity Card contrary to section 7A(1) of the Registration of Persons Ordinance as it has for an offence of unlawful possession of another’s Hong Kong Identity Card contrary to section 7A(1A) of that Ordinance.  On conviction on indictment the maximum sentence for both offences is a fine at level 6 and imprisonment for 10 years, on summary conviction the maximum sentence is a fine at level 5 and imprisonment for up to 2 years.  Given this equality of maximum sentence, there is no justification for saying that the sentence for possession of a forged identity card should be more severe that that for possession of another’s identity card.  As most offences under sections 7A(1) and 7A(1A) are brought in the Magistrates Court, 2 years is the maximum sentence any offender could expect to receive for either offence. 

10.  Barnett J, in Shamin Nawaz, in the passage quoted earlier, said that when it comes to sentencing for sections 7A(1) and 7A(1A) offences the real question the magistrate should ask himself was: why did the offender have the card?  Barnett J drew a distinction between the offender who had the card for the purpose of either obtaining employment in Hong Kong, or furthering his remaining in Hong Kong, and the offender who had the card a more innocent purpose.  He was of the view that the offender who had the card for the later purpose should be less severely punished than the one who had it for the former purpose.  That decision, which is now 10-years old, is, I think, so firmly embedded in our case law that it can be regarded as a establishing what may be described as a ‘principle’ and it is the one possible exception I have just referred to.

11.  Since the decision in Shamin Nawaz, many cases involving offences against sections 7A(1) and 7A(1A) of the Registration of Persons Ordinance have been prosecuted in the Magistrates Courts.  Each of them had its own particular facts, which were so varied that no other sentencing principle or guideline can, or should, be established from them.

12.  It is true that in HKSAR v. Chan Man Mo [2001] 1 HKLRD 121, V Bokhary J at pages 129J to 131B, reviewed an number of past appellate decisions involving offences against sections 7A(1) and 7A(1A) of the Registration of Persons Ordinance and attempted in a number of factual scenarios to gather together “…the principles and sentence levels…” which she believed emerged from those cases.  She did that in the hope that it would be of assistance to magistrates.  Before doing that she made it very clear, at page 129J to 130A, that she was not:

“…(taking) it upon myself to lay down guidelines in the way that the Court of Appeal does…”

13.  The limited utility of the decision in Chan Man Mo was demonstrated by Deputy High Court Judge Day in HKSAR v. Chen Hanwei HCMA 148 of 2003 (unreported), where he identified yet another factual scenario in addition to those identified in Chan Man Mo.  Clearly the Chan Man Ho scenarios cannot be exhaustive of all possible factual circumstances under which offences against sections 7A(1) and 7A(1A) offences of the Registration of Persons Ordinance can be committed.

14.  It must be remembered that sentencing guidelines are the exception, not the rule.  Where guidelines are laid down and principles established, this should be done by the collective wisdom of three judges in the Court of Appeal and announced as such.  Further, the Court of Appeal emphasized in R v. Lou Wah Theam [1997] 1 HKC 412, at page 415C, that:

“Where this court intends to provide sentencing tariffs for any specific offence it makes it clear that the case is a guideline case.”

15.  Most appellate judgments on sentencing, both of the Court of First Instance and the Court of Appeal, do no more than uphold, reduce, or increase a particular sentence.  They are no more than examples of how a particular court has dealt with a particular offender in relation to the particular circumstances of his offence.  They are not intended to provide guidance for the future.  They are certainly not authorities, let alone binding precedents, and they should not be cited in argument.  Although the Court of Appeal has repeatedly deprecated the citation of comparable decisions which do not purport to establish any principle, or provide any guidelines, practitioners continue to pray them in aid, as was the case in this appeal.

16.  The most that can be said by way of guidance to magistrates on how they should sentence for sections 7A(1) and 7A(1A) Registration of Persons Ordinance offences is that they should appreciate that, as the legislature has set the same maximum penalties for each offence, it has not sought to differentiate between them in terms of relative seriousness.  And that (perBarnett J, in Shamin Nawaz)there is a distinction to be drawn betweenthe offender who has the card for the purpose of either obtaining employment in Hong Kong, or furthering his remaining in Hong Kong, and the offender who has the card a more innocent purpose, with the later being subject to a lighter sentence than the former.  Other than that there are no principles and no guidelines, and magistrates should sentence according to their own view of the facts of the case.  This Court will vary the sentence on appeal if it considers that it is too severe.

17.  Miss Wong was wrong in saying that the Magistrate erred in concluding that general deterrence is required for this offence.  He did not say that.  What he said was that the possession of forged Hong Kong Identity Cards by Mainlanders in Hong Kong is prevalent.  This is something that he will know from his own experience as a busy magistrate sitting in a busy Magistrates Court.  There is nothing objectionable in that remark.

Decision

18.  In the present case, given that there was no evidence that the Appellant had attempted to obtain employment relying on the forged identity card, as opposed to having the intention of doing so, I was of the view that a 12 month sentence was excessive, I therefore reduced the Appellant’s sentence to one of 8 months’ imprisonment.