HKSAR v. CHEN HANWEI

HCMA148/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.148 OF 2003

(ON APPEAL FROM KCCC 1511 OF 2003)

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J U D G M E N T

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1. The appellant in this case pleaded guilty to a single charge of possessing a forged identity card in the Magistrates' court. He was sentenced to ten months' imprisonment and now appeals that sentence on the ground that it is too severe.

2. The facts were straightforward. The appellant was lawfully in Hong Kong by virtue of a Chinese two-way permit. He was permitted to be in Hong Kong as a visitor between 20 January 2003 and 2 February 2003. He was stopped by a suspicious police officer at an MTR station on 23 January 2003 and a search of his waist-bag revealed a Hong Kong identity card which bore his photograph but which was in the name of another person. Subsequent examination of that card by the Government chemist revealed it to be a clever forgery. Under caution, the appellant admitted that he had bought the card for $200 in China and that he intended to use it to find work here.

3. In arriving at his sentence the learned magistrate relied heavily on the case of R. v. Shamim Nawaz [1994] 1 HKCLR 195. That case involved the possession of an identity card belonging to another and remaining in Hong Kong after his permission to stay had expired. Barnett J reduced the overall sentence imposed by the magistrate from 15 to three months. In the present appeal, of course, the appellant was here legally when arrested.

4. In the course of his judgment Barnett J said the following :

"... 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."

And it is that passage upon which the learned magistrate in this case places some store in arriving at his starting point of 15 months.

5. The magistrate noted that in this case prior to his arrival in Hong Kong, the appellant had planned to use the forged card to obtain employment, and that the card was "the product of skilled and professional forgery". He continued at paragraph 8 of his Reasons for Sentence to say this :

"Thus the card in this case was possessed to obtain employment. Given the defendant's continued possession of it within 10 days of the end of his two-week permission to say in Hong Kong as a visitor, the link between his status in Hong Kong and the identity card was established: he intended to use to prolong his stay. That is the only inference. He would hardly have taken the elaborate steps to obtain the card, or continued with the risk of possessing it, if he merely intended to work during his lawful stay or the remainder of it. I note that the learned judge in Shamain Nawaz did not distinguish between those who had actually obtained employment and those who intended to do so. In either situation, the possession of the card established the link between the card and the status in Hong Kong. In the circumstances, a sentence of 15 months' imprisonment upon the defendant's plea of guilty might have followed."

6. The learned magistrate found that the fact clearly pointed to the appellant's intention to use the card to gain employment and to prolong his stay and, with respect, I do not think that these findings can sensibly be challenged and it is this which distinguishes this case from those considered in Chan Man Mo which I shall come to shortly.

7. There have been many cases before the courts dealing with offences such as that before me today. So many and with such a variety of facts and sentences that Bokhary J felt compelled in HKSAR v. Chan Man Mo [2001] 1 HKLRD 121 to :

"... gather together the principles and sentence levels which emerge from the past cases ... such an exercise will, I believe, be of assistance to Magistrates in future cases of this kind. I do not take it upon myself to lay down guidelines in the way that the Court of Appeal does, but I trust that what I am about to say will nevertheless be helpful to Magistrates."

8. Having reviewed a number of cases including Shamim Nawaz, the judge set out a number of fairly typical factual situations and indicated the sort of sentence which the cases suggested might be appropriate. It was, if I may say so, a thorough and helpful exercise. In that part of her conclusion most relevant to this appeal, she said :

"(3) Where the offender's presence in Hong Kong was legal at the time of his offence, he being neither an illegal immigrant nor an overstayer, possession of somebody else's identity card which he found would merit a sentence of about three months' imprisonment upon a plea of guilty.

(4) Even if the offender's presence in Hong Kong was legal at the time of his offence, because he was neither an illegal immigrant nor an overstayer, the fact that he intended to use a forged or somebody else's identity card to seek employment would be an aggravating factor, and the appropriate sentence upon a plea of guilty would be about four months' imprisonment.

(5) If he had actually used a forged or somebody else's identity card in seeking employment, then a sentence of about a year's imprisonment would be appropriate even though his presence in Hong Kong was legal at the time of his offence because he was neither an illegal immigrant nor an overstayer."

9. The facts of this case, however, bear one important difference to the scenario presented by Bokhary J, the one I have earlier alluded to - the appellant's intention to use the card to prolong his stay.

10. It is the intent to use the card to prolong his stay which links his status in Hong Kong with the identity card. He did not have this card only to find employment, but also to ensure he could stay in Hong Kong to work beyond the period allowed by his visa.

11. I note that the cases reviewed in Chan Man Mo did not include such findings and the present case produces a further scenario : that of the offender who is in Hong Kong lawfully, who is in possession of a forged identity card, who had intended to use that card to find work in Hong Kong, and also who had intended to use that card to prolong his stay here.

12. Whether or not in any particular case the offender intended to use the card to prolong his stay here, whether through work or not, may be apparent from direct evidence i.e. an admission or by inference. In the present case, it was by inference properly drawn.

13. The sentence in such a scenario ought in my view to reflect a meaningful distinction between the man who intended to use the card to find work and help him stay on unlawfully and the man who is already here unlawfully and in possession of such a card, intending to find work or to use it to further his remaining in Hong Kong. The latter would face 15 months after a guilty plea. At the same time, the sentence ought to acknowledge that without the additional factor of intending to use the card to further his stay in Hong Kong, the appropriate sentence would be about four months' imprisonment.

14. The learned magistrate was, with respect, quite right to draw the distinction he did although in my view a sentence of 10 months does not strike the correct balance.

15. I shall allow the appeal and reduce the sentence to one of eight months' imprisonment.