HKSAR v. LAI KAM CHEONG, LAWRENCE

HCMA 426/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 426 OF 2002

(ON APPEAL FROM KCCC 1426/2002)

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J U D G M E N T

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1. The Appellant was charged with one charge of possession without lawful authority or reasonable excuse an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap. 177, and one charge of breach of condition of stay (overstaying), contrary to section 41 of the Immigration Ordinance, Cap. 115. He pleaded guilty to the second charge and not guilty to the first charge.

2. After trial, he was convicted of Charge 1. The learned Magistrate sentenced him to 21 months' imprisonment on Charge 1 and 4 months' imprisonment on Charge 2, and 2 months of that 4 months' imprisonment was to be served concurrently with Charge 1. The Appellant appeals against his conviction on Charge 1 and against his sentence for both Charge 1 and Charge 2.

3. The prosecution's case was that the Appellant was intercepted by a police officer at about 11:48 pm in Yaumatei. The police officer asked the Appellant for proof of identity, and the Appellant produced an identity card to show the Police Officer. When the police officer saw that the photograph on the identity card did not match the Appellant's appearance, he was further questioned and subsequently the Appellant was arrested. The identity card bore the name of another person and not the name of the Appellant. The name on that identity card was a Mr Hussain Wahid who had left Hong Kong in 1998. The subsequent investigation revealed that the Appellant came to Hong Kong on 1 October 1998 and was only permitted to stay in Hong Kong until 5 October 1998.

4. After the prosecution's case was concluded, the Appellant elected to give evidence. He agreed he had overstayed in Hong Kong, and he said that he had picked up the identity card when he was on the street. He was intending to post it to the authorities. The reason he did not take it personally to the police station is because he was an overstayer. When he was still looking for a post box, he then met the police officer. The Appellant claimed that the police officer asked him for his passport, and he told the police officer he did not have his passport with him, and the police officer searched him and found the identity card in his pocket.

5. The learned Magistrate, after listening to the evidence and after going through a careful consideration of the evidence before him, decided that the prosecution witnesses were telling the truth. He did not believe the Appellant. So at the end of the day, he was satisfied that the case against the Appellant had been proved beyond a reasonable doubt.

6. The Appellant appeals against his conviction this morning on the ground that he had not produced his identity card to the police officer, thus repeating his evidence which he gave in front of the Magistrate. The learned Magistrate had heard the evidence and decided the facts of the case. An appeal is not a retrial and it is very rare for an appeal court to upset a Magistrate's findings on the facts. The reason being the Magistrate had an opportunity to observe the witnesses when they gave evidence. I have read the Magistrate's recent Statement of Findings and I cannot find any instance where the learned Magistrate had made an error in his findings. The appeal against conviction is dismissed.

7. Now the Appellant appeals against his sentence on both Charges 1 and 2 because he considers them to be manifestly excessive, and he also asks this court to exercise its discretion on humanitarian grounds because his father had an accident and his mother is suffering from a heart condition, so he wants this court to reduce his sentence.

8. The Magistrate, before he sentenced the Appellant, had considered that the Appellant is 33 years old and has a clear record in Hong Kong. The Magistrate then went on to properly consider the cases that was decided by the Court of Appeal in relation to these offences. In the latest case of HKSAR v Chan Man Mo which is HCMA No. 1059 of 1999, it was said there that for an overstayer, who was found in possession of somebody else's identity card for the purpose of obtaining employment or furthering his remaining in Hong Kong, he should be sentenced to 15 months' imprisonment if he pleads guilty, and such sentence should be increased by 2 months if the offender produced somebody else's identity card to a police officer conducting an identity card check. So, in other words, an offender who produced somebody else's identity card would be sentenced to 17 months' imprisonment upon a plea of guilty. In those circumstances, the learned Magistrate had properly considered the Court of Appeal guidelines when he sentenced the Appellant to 21 months' imprisonment after trial, that sentence is manifestly excessive.

9. As for the second charge of overstaying, the learned Magistrate took into account that the Appellant had overstayed by 2 years and 3 months and had no intention to leave the territory at the time when he was arrested. In these circumstances, having regard to the authority on sentencing for this offence, he adopted the 6 months starting point and gave the Appellant the full one-third discount for his guilty plea. Having also taking into account the Appellant's clear record, he sentenced the Appellant to 4 months' imprisonment. He also very properly made that sentence partly concurrent to the sentence in the 1st charge. I cannot fault the Magistrate on the sentence.

10. In relation to the plea by the Appellant to reduce his sentence on humanitarian grounds, the Court of Appeal has said that for a sentence to be reduced on humanitarian grounds, exceptional circumstances should exist and the family circumstances relating to close family members' health problems cannot be considered as an exceptional circumstance. So the appeal against sentence is also dismissed.