R. v. CHENG HUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.288 OF 1997

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J U D G M E N T

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1. The appellant was convicted after trial of two counts of possession of identity cards belonging to other persons. He was sentenced to 12 months' imprisonment on each count, both sentences to run concurrently.

2. The facts as found by the learned magistrate revealed that the appellant and another person were seen by the police officers walking in the streets of Shamshuipo. Upon seeing the police officers, they started to run. They were finally apprehended, but denied having run. Upon a search, the appellant was found to have two identity cards belonging to other persons. These two cards were mixed with some betting slips. He remained silent when he was questioned. Up to now, he still did not offer any explanation as to why he had come into possession of these two identity cards. He is a Hong Kong resident and not an illegal immigrant who might have made use of the identity cards for some other purpose, but there is absolutely no idea as to why or for what purpose the possession of the cards was.

3. The learned magistrate considered the case of Nawaz [1994] 1 HKCLR 195 but departed from that case. It seems that he took the view that this was not a case of a plea and the appellant was not entitled to any discount for his plea. That certainly is correct. The appellant had previous convictions and therefore cannot be treated as one having previous good character and hence entitled to be treated leniently. That again is certainly correct.

4. The learned magistrate referred to the circumstances of the apprehension of the appellant and his conduct at the trial although he did not rely on them especially when dealing with sentence. With respect, these matters did not add anything.

5. The learned magistrate suggested that this was not a case of innocent possession and therefore the three month prison sentence in Nawaz should not be applicable. He came to the conclusion that this offence attracted a maximum of two years' imprisonment and a fine of $20,000. He took everything into consideration and found that 12 months was the right and appropriate sentence for the two offences.

6. My attention was drawn to what the learned magistrate said during the time of passing sentence. It seems that from the authority of Nawaz, Chong Yuk Lun, Shazad Ahmed and the case of Iqbal that for Chinese illegal immigrants having been found to be in possession of identity cards belonging to another, the usual tariff would be 15 months to 18 months or even more, depending on circumstances. But these tariffs are linked to the policy decision of 15 months for illegal immigrants. For non-Chinese nationals found in possession of identity cards belonging to another in connection with overstaying or getting employment, the usual tariff would be 12 months. If, however, a person is in possession of an identity card and there is no evidence that the possession is linked up with any of the purpose of overstaying or getting employment, then these are cases suggesting that the sentence should be three months' imprisonment.

7. I agree with the learned magistrate that the purpose of possession is relevant in sentencing. This of course must be contrasted with an explanation or reasonable excuse, because if there is a lawful authority or reasonable excuse, there is no offence. What concerns me is that the learned magistrate said at p.11 of the appeal bundle :

"I find no aggravating features nor any mitigating circumstances and I sentence you to 12 months imprisonment immediately."

Further down on that page, he said :

"... this is not a crime of violence, of course, and there is no inference or implication that you're going to do anything peculiar or illegal with these cards. However, the tariff does require a period of incarceration and in my view this is a reasonable period of incarceration for this offence on these circumstances."

The Crown conceded that there was no tariff as the magistrate seemed to have suggested for this type of offence committed by non-Chinese illegal immigrants and there is no evidence connecting the cards in his possession to any overstaying or unlawful employment.

8. I was given to understand that at the time of Nawaz, the usual sentence imposed by magistrates would be between three to six months.

9. Having considered these authorities, it appears to me that where there is no aggravating or mitigating circumstances, and where there is absolutely no evidence on which the court can draw an inference, let alone irresistible inference, that the possession would be for some illegal purpose, a sentence of 12 months would be manifestly excessive. I would accept that "the going rate" which cannot be described as a tariff would be about three to six months. Looking at the facts of this case and the circumstances under which the offences were committed, I would think that a sentence of six months each to run concurrently with each other would be more appropriate.

10. I am given to understand by counsel for the appellant that the appellant had a personal mitigating factor, that is, he has a younger brother who is mentally retarded and requires personal attention. In fact the appellant had for the last two or three years been looking after him. Because of his incarceration, the appellant was unable to do so and the younger brother had to be, so to speak, detained for attention at some other institute. I consider that there are humanitarian grounds and exceptional circumstances in this case. While I would, in the normal circumstances, reduce the sentence from 12 months to six months, I am minded to reduce the sentence in the present case to allow the immediate release of the appellant. This is because he has in fact served 3 1/2 months already which is very much equivalent to 5 ½ months, i.e. nearly 6 months. I would therefore allow the appeal, set aside the sentence and reduce the sentence to enable him to be released immediately.