HKSAR v. YANGI GUIPING

HCMA 724/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 724 OF 2003

(ON APPEAL FROM ESCC 1957/2003)

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J U D G M E N T

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1. This Appellant was convicted in the Magistracy of a number of counts. The first was Using a Forged Identity Card for which she was sentenced to 15 months' imprisonment, then, for 8 Breaches of Condition of Stay she was sentenced to 6 months on each count, all to be concurrent. Two months of the total sentence on Charges 2-9 were ordered to run consecutively to the sentence on Charge 1, a total of 17 months. The Appellant appeals against those sentences.

2. The facts show that she was arrested working in a home for the elderly. She had been making use of a two-way permit; she was not allowed to work under the terms of that permit. When enquiries were made by the investigating officer, she produced an identity card, subsequently, the forensic pathologist confirmed the card was forged as it showed "discrepancies in the security features". The card had been used by the Appellant to obtain employment. Between 7 February 2002 and the time of her arrest on 17 June 2003, the Appellant had been in and out of Hong Kong 8 times, using her two-way permit.

3. In mitigation, the Magistrate was told that the Appellant was aged 36 and was divorced. She has a son, aged 10, living in the Mainland who was under the care of her parents and a domestic helper.

4. On appeal, the Appellant said she was remorseful. She came to Hong Kong only for the sake of her son, she is now concerned because he has lost interest in his studies and her parents are worried about her. She was willing to be punished and asked for a reduction in sentence so she could look after her son. She claimed she had resigned from the job at the time of the police raid, but had been prevailed upon by her boss to continue working as a stand-in for her colleague.

5. None of the facts put before this court, or the Magistrate, have any mitigatory value, apart from the plea of guilty. The Appellant had a previous record; in February 2001, she was charged for Breach of Condition of Stay and fined $1,000. The Magistrate considered that 15 months for the forged identity card charge was appropriate, bearing in mind that she used it in an identity check and to obtain employment. The Magistrate imposed 6 months for each breach of condition of stay, noting it was particularly serious problem, given the high employment rate in Hong Kong, that people were coming here and working illicitly.

6. The Magistrate imposed a slightly higher sentence than suggested for the first charge Chan Man Mo indicated that about 12 months' imprisonment was appropriate where somebody used a forged identity card to seek employment. A further aggravating factor would be the production of the card to a police officer conducting an identity check, which was what hsppened here. Chan Man Mo indicated such conduct would be reflected by another 2 months' imprisonment; on that basis, the appropriate sentence for Charge 1 should have been 14 months.

7. For Charges 2-9, the Magistrate imposed only 6 months on each charge and ordered them to run concurrently. The total sentence is probably too light and it would be appropriate that 3 months be served consecutively to the sentence on Charge 1. The appeal is allowed to the extent of that variation 14 months' imprisonment is imposed on Charge 1. The sentences of 6 months for each of Charges 2-9, would be concurrent and it is ordered that 3 months of that total be consecutive to Charge 1; the total remains 17 months.

8. The totality of the sentence has been considered and it is appropriate in view of the number and the nature of the offences.