HKSAR v. MANDADIGE ARUNA SHANTHA FERNANDO

HCMA1038/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1038 OF 2001

(ON APPEAL FROM FLC 1215 OF 2001)

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J U D G M E N T

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1. On 21 August 2001, the appellant was convicted on his pleas in the Magistrate's Court of three offences : firstly, having in his possession an identity card which related to another person, on 7 June 2001, contrary to section 7A(1)(a) of the Registration of Persons Ordinance, Cap.177. Secondly, for using an identity card belonging to another person on 9 May 2001, contrary to the same section of the Registration of Persons Ordinance. Thirdly, for contravening a condition of stay on 7 June 2001, contrary to section 41 of the Immigration Ordinance, Cap.115, namely for overstaying.

2. He was, on the same day, sentenced to 13 months' imprisonment on each of the 1st and 2nd charges, and one month's imprisonment on the 3rd charge, all sentences to run concurrently.

3. The admitted facts, as recited by the magistrate, showed that on 15 April 2001 the appellant and his wife moved into the home of the informant as lodgers. Approximately two months later following an anonymous tip-off to the informant, a quarrel developed between the appellant and his wife and the informant and his wife, and the police were called. When he was asked for his identity documents by the police, the appellant produced the identity card in question which related to another person. On being searched, he was found to be in possession of a Hang Seng Bank card and he admitted having used the identity card in question to open a bank account and obtain the bank card on 9 May 2001.

4. In relation to the 3rd charge, Immigration records showed that the appellant and his wife arrived in Hong Kong on 7 March 2001 and they were permitted to remain until 7 April; however some other persons holding the passports of the appellant and his wife had in fact left Hong Kong on 7 April 2001.

5. The appellant has appeared in person today to appeal against the sentences which were imposed upon him. His grounds of appeal are that the sentences are too severe, bearing in mind the difficulty of his personal circumstances, namely, the fact that he has a wife and a two-year-old daughter, at home in Sri Lanka as well as elderly parents, all of whom are dependant upon him for their support. He says that while he is in custody in Hong Kong, his family in Sri Lanka have no source of income and are having a very difficult time.

6. The record of proceedings before the magistrate shows that the same personal factors were cited to the magistrate in mitigation, and the magistrate's reasons for sentence show that she did duly take them into account. The appellant in his oral submissions in support of this appeal has however cited one additional factor which was not specifically referred to before the magistrate, which is also a factor relating to the difficulty of his family circumstances, to the effect that he says he borrowed a lot of money to enable himself and his wife to come to Hong Kong; that his creditors are pressing his family in Sri Lanka for repayment of those loans; that his father is having to repay the loans in part from his meagre pension, and this is making life extremely difficult for his family.

7. While I am not unsympathetic to the plight of the appellant's family and the distress that this obviously causes the appellant, this is not a factor which in my view properly entitles him to a reduction in the sentence which it is otherwise proper for the magistrate to have imposed.

8. The magistrate's reasons for sentence reflect that she adopted a starting point of 15 months' imprisonment and discounted this by two months in order to reflect the hardship that the appellant as a foreign national would face in prison in Hong Kong, since his home culture was so different to that of the local culture.

9. In relation to the starting point of 15 months' imprisonment, the magistrate cited the decision of the Court of Appeal in R. v. Chan Wun-sang and Another [1993] 1 HKLR 46. That case concerned two appellants, each of whom had pleaded guilty to one charge of using an identity card which related to another person, contrary to section 7A(1)(a) of Cap.177, and in addition to one charge of remaining in Hong Kong without the authority of the Director of Immigration, contrary to section 38(1)(b) of the Immigration Ordinance. One of the appellants had been arrested while attempting to open a bank account, and each of those appellants had a relevant previous conviction. Both of them were sentenced to 18 months' imprisonment.

10. In the course of its judgment, the Court of Appeal referred to R. v. So Man-king and Others [1989] 1 HKLR 142 which set the standard or "tariff" sentence for these offences of 15 months' imprisonment after a plea of guilty. Of course, this "tariff" as it is called, is never intended to be a straitjacket on the sentencing tribunal, and this was reflected by the court in R. v. So Man-king, which indicated as follows :

"The guideline already allows for the almost inevitable plea of guilty, but voluntary surrender to the authorities should warrant a substantial discount, and strong humanitarian considerations should always be honoured ... On the other hand, the court should take into account, by upward adjustment of the 15 month starting point any previous unlawful entry ... and other 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."

11. In R. v. Chan Wun-sang the Court of Appeal referred with approval to previous authorities which indicated that the sentence of 15 months' imprisonment was appropriate if the use of the identity card was merely for the purpose of representing that the holder has the right to reside here, and further indicated that the use of the identity card to open a bank account would be precisely the sort of aggravating circumstance which would justify an increase in the standard sentence. Since the previous unlawful entries of the appellants in that case into Hong Kong constituted a further aggravating circumstance, the court confirmed the enhanced sentence of 18 months' imprisonment which had been imposed upon the appellants by the magistrate.

12. Bearing in mind the dicta of the Court of Appeal in R. v. Chan Wun-sang and the previous cases cited by the court, the magistrate cannot be faulted for having adopted a starting point of 15 months' imprisonment in relation to the appellant in this case. Indeed, on the basis of those authorities she could have adopted an even higher starting point than 15 months' imprisonment to reflect the aggravating feature that the appellant did use the identity card in question in order to open a bank account for himself.

13. Miss Poon also very fairly drew my attention to the decision of Nguyen J in HKSAR v. Loku Hennadige Maheswari, HCMA596/1998 in which the ground of the appeal against a sentence which had been imposed for similar offences was that the court had failed to take into account the fact that the appellant was from Sri Lanka as opposed to mainland China or Vietnam. The judge referred to the fact that there did appear to be a line of cases in Hong Kong which had adopted a lower starting point than 15 months' imprisonment for these offences, where the defendant came from a jurisdiction other than mainland China or Vietnam, on the basis that the "tariff" had been intended to be imposed only upon illegal entrants from the Mainland.

14. It is important to note that on the facts of that case the charges of which the appellant had been convicted were for possession of an identity card relating to another person and a breach of a condition of stay, and there was no evidence that the appellant had used the identity card in question for any other purpose. The appellant had been sentenced to the "tariff" sentence of 15 months' imprisonment.

15. The appeal was allowed and the sentence reduced on the basis of the line of cases which adopted a lower starting point for persons coming from places other than mainland China or Vietnam; a starting point of 12 months as opposed to 15 months' imprisonment was adopted, which starting point was then discounted to reflect the plea of guilty and clear record, to a sentence of nine months.

16. However, I note that in his examination of the authorities, the judge specifically referred to the decision of Barnett J in R. v. Shamim Nawaz [1994] HKCLR 195, which was also concerned with a defendant who had come from a jurisdiction other than the Mainland or Vietnam, and in which Barnett J ruled that if, on the facts, the offender had not only possessed the identity card in question belonging to another, but had used it to obtain employment or otherwise to further his remaining in Hong Kong, then a sentence of 15 months' imprisonment upon a plea of guilty could not be said to be excessive.

17. Bearing in mind that in the present case the facts in relation to the 2nd charge were that the defendant had used the identity card in question belonging to another person in order to open a bank account, then notwithstanding that he came from Sri Lanka, on the authority of the decision in R. v. Shamim Nawaz (above), the starting point of 15 months' imprisonment adopted by the magistrate cannot be said to be wrong or excessive.

18. Indeed, the appellant can consider himself fortunate that the magistrate discounted that starting point by two months to reflect, as she put it, the hardship which a foreign national such as the appellant would face in prison in Hong Kong.

19. In all these circumstances, I can see no reason to interfere with the sentence imposed by the magistrate, and the appeal is accordingly dismissed.