HKSAR v. NASEER AHMED

HCMA892/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 892 OF 2006

(ON APPEAL FROM ESCC 2052 OF 2006)

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J U D G M E N T

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1. This is an appeal against sentence.  The Appellant was stopped in May of this year, in Central, by a police officer and was asked for proof of his identity and he produced a forged passport.  It was apparent to the officer that there had been a substitution of the photograph.  When asked about the matter, the Appellant said that he had arrived in Hong Kong some five years ago and, having lost his own passport, he had bought the one he then produced, from a friend, for $3,000. 

2. He was charged with two offences, namely, the possession of a forged travel document, contrary to Section 42 of the Immigration Ordinance, and with remaining in Hong Kong without authority, contrary to Section 38 of the same.

3. He pleaded guilty to the 1st charge, the possession of the forged travel document, but not guilty to the charge of unlawfully remaining, contending that he had come here properly five years ago.  There was no record of his having landed lawfully and he was convicted.

4. In respect of the 1st charge, the magistrate passed a sentence of 15 months in prison, likening the situation to that dealt with in the well-known recent case of Li Chang Li, where the Court of Appeal had said that on a plea of guilty, 15 months was the right sentence for someone using a forged identity card to stay in Hong Kong.  In respect of the 2nd charge, the magistrate passed a sentence of 21 months’ imprisonment because the 15 month habitual sentence applies on a plea of guilty.

5. One cannot help but mention it could not have been much of a trial.  It would have been the absence of a record against an assertion that he had come lawfully.  It cannot have taken very long and it cannot have put the prosecution to, I would have thought, any great bother.  But leaving that aside, the magistrate then, looking at the totality of the matter, ordered that 15 months of the longer sentence be added to the sentence of 15 months on the 1st charge, producing a total of 30 months in prison.  In his reasons for sentence, he pointed out that having come here unlawfully, he then committed a further crime here; namely, the acquisition of the forged passport, and he regarded that as if he had come here as an illegal immigrant and then committed a further crime and so ordered the sentences, basically, to be mostly consecutive. 

6. Of course, today I have the advantage of being supplied with a long list of authorities by the prosecution.  Basically, those authorities establish the proposition that where someone arrives unlawfully and, as part of that, they have a forged travel document with them, the sentences will normally be concurrent, though if the forged travel document is used, for instance, to get a job or open a bank account, a modest increase in the sentence can result.  Accordingly, the Respondents to this appeal do not seek to argue that the 30 months’ sentence is the right one and they say that something in the region of 21 months, subject to a modest increase perhaps for the use of the card, would be right.

7. I agree that this case should result in a sentence of 21 months’ imprisonment.  I arrive at it by a slightly different route.  The route may not be particularly important but it was this:  that this is not a case where the two sentences should be completely concurrent because the mischief is greater than the usual sort of case where an illegal immigrant comes over the border with the forged identity card on his person in order to allow him to pass himself off as a Hong Konger and work here.  So I would increase the sentence here beyond the 15 months for that reason, along with the length of stay of five years.

8. I would not, in fact, myself increase to 21 months the sentence on the 2nd charge because there was a trial, but in order to achieve the 21 months I judge to be the right overall sentence, all I need do in this case is say that the two sentences passed by the magistrate will run concurrently.  The total sentence is thus one of 21 months’ imprisonment.  I do not think the Appellant could have hoped for a reduction greater than that.