THE QUEEN v. CHAN AH LUK

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL

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J U D G M E N T

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1. Each pleaded guilty to two offences one of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully, and the other of using a Hong Kong identity card relating to another person. Each was sentenced to imprisonment for 15 months on the first charge and to imprisonment for three months on the second. In each case the learned magistrate ordered that the sentences run consecutively.

2. The offences were discovered when a party of police officers "conducted an anti-II operation" at the dormitory of a restaurant in the New Territories. Each when asked for proof of identity stated that he had recently entered Hong Kong unlawfully from China. Questioned under caution each said that he had obtained a job at the restaurant by producing a Hong Kong identity card relating to another person.

3. The learned magistrate imposed the first sentence relying on R. v. SO Man-king (Mag. App. 408/88). In relation to the second he said:

"On the `B' charge, some further custodial term was, required to be imposed, as it is one thing to be remaining illegally in Hong Kong, but altogether another to be, in addition, using the identity card of another, which is in itself, a separate quite serious offence."

4. Each now appeals alleging that the second sentence "was manifestly excessive and/or not the proper one in the circumstances, in that the magistrate erred in

(a) not allowing it to run concurrently with the 15 months; and/or

(b) in finding that some further custodial term was required to be imposed."

In SO Man-king the Court of Appeal said :

"The substantial element in sentencing for[both] offences is the unlawful presence in Hong Kong...[T] he Court should take into account, by upward adjustment [of the normal sentence of 15 months].....circumstances which may aggravate the offence such as the actual use of a forged or other person's identity card to obtain some particular benefit."

5. It has recently held by Bewley J. in R. v. WONG Pik-yu (Mag. App. 968/88) and Hooper J. in R. v. MA Lung (Mag. App. 1210/88) that the production of the card in the course of an application for employment is not the type of use which the Court of Appeal had in mind as an aggravating factor. In each case the learned judge found support for so holding in the approach adopted by the Court of Appeal when dealing with the Application to Review in A-G v. LAM Ping-chun (AR 10/88).

6. Had those decisions been given before the sentences were passed in this case the learned magistrate would have been bound to impose 15 months concurrent in respect of the identity card offence in each case.

7. I therefore allow the appeals quash the identity card sentence in each case and substitute for it a sentence of imprisonment for 15 months to be served concurrently with the unlawful remaining sentence.