HKSAR v. CHEN HUIHUA

HCMA380/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.380 OF 2005

(ON APPEAL FROM KCCC 1903 OF 2005)

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J U D G M E N T

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1. The appellant pleaded guilty to one count of ‘Breach of Condition of Stay’ and one count of ‘Possession of a Forged Identity Card’, contrary to section 41 of the Immigration Ordinance, Cap.115 and section 7A(1) of the Registration of Persons Ordinance, Cap.177.  She was sentenced to the concurrent terms of one month and 15 months’ imprisonment respectively.  The appellant appeals against these sentences. 

2. The facts as admitted by the appellant were as follows :

“	At 1955 hours on 24th March 2005, PW1 arrived at Shanghai Street near the junction with Bowring Street, Yaumatei. When he saw D acting suspiciously at the location, PW1 stopped D for enquiry. D produced a Hong Kong Identity Card (Exhibit 1) to PW1, but PW1 suspected it to be a forged one.  D later brought the police back to her residence across the street (5/F, 66 Shanghai Street) and produced her Chinese Two-way Permit in the name of CHEN Fenzhu. PW1 arrested D and she admitted her guilty under caution.  In further questioning, D also admitted that she intended to look for jobs with the forged identity card.  After examined by government forensic scientist Dr NG Po-king who opined that the HKID Card (E1) is forged.
	PW2 took over the investigation later and brought D back to her residence for further enquiry.  Inside her residence, D also surrendered her Chinese Passport (which she had used with to enter Hong Kong).  The Traffic Index record revealed that D entered Hong Kong on 2004-10-26 and was permitted to stay in Hong Kong for 7 days only.”

3. In sentencing the appellant, the magistrate remarked that he had borne in mind all that was submitted.  According to the transcripts, it would have included such matters as the appellant was 41, married and had two teenage children whom she could hardly provide for financially.  It was also submitted that she had never actually used the forged identity card in question.

4. Today, before me, the appellant largely repeats what was advanced before the magistrate, plus the assertion that she is suffering from diabetes.  The point is also raised that a fellow inmate was only sentenced to six months’ imprisonment on the same charge.

5. Since the Court of Appeal’s decision in Li Chang Li HCMA935/2004, delivered on 4 March 2005, the usual sentence for possession by visitors whether or not overstaying has been set at 12 months after plea.  If the identity card is produced either to obtain work or to disguise the visitor’s true status then it should be increased to 15.

6. The appellant’s sentence falls squarely within the second scenario.  She has no ground of complaint.  Nothing that she put before the magistrate and me in mitigation is such that I feel the usual sentence should be disturbed.  Her appeal is dismissed.