THE QUEEN v. CHUNG WAI-YIU

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DECISION

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1. The Attorney General seeks leave to apply for a review of a sentence of a fine of $500 or 14 days' imprisonment in default imposed by E.S. Yanne, Esq. in respect of an offence of using an identity card relating to another person, contrary to reg.12(3) of the Registration of Persons Regulations. The Defendant was stopped and searched in the street. It would appear that he "presented" the card and that it was not merely found in his possession, but in any event he admitted having used the card to obtain employment. It had been lost, and the Defendant further admitted having bought it from an unknown man in Canton.

2. Before sentence was passed the prosecution informed the magistrate that the Defendant was an illegal immigrant, and that fact appears to have been the basis of a subsequent application to the magistrate himself to review his sentence. The magistrate held that it was irrelevant to a charge under reg.12(3) of the Registration of Persons Regulations, and pointed out that it could have been made the foundation of a charge under s.38(1)(b) of the Immigration Ordinance. He expressly said that if such a charge had been laid he would have had no hesitation in imposing an immediate custodial sentence.

3. It is now said that the sentence was manifestly inadequate and wrong in principle, although particulars of the error in principle alleged are not given.

4. In the Attorney General v CHAN Wai-lan 1982 H.K.L.R. 68 this court laid down as a guideline for sentencing in cases of failing to produce proof of identity for inspection, contrary to s.17C(3) of the Immigration Ordinance, a fine within the range $150 to $2000. As was there pointed out ,such offences, although usually involving little or no element of moral blame, called for something more than a nominal sentence. Offences under reg 12(3) are in a very different category and involve an intent to deceives. Accordingly they call for substantially heavier punishment. In my view the fine of $500 imposed here may well have been lenient, but, unless it was right to have regard to the fact that the Defendant was an illegal immigrant, I am not persuaded that a fine was inappropriate: the magistrate states that the normal sentence for this offence on first conviction is the imposition of a fine and, in the absence of grave aggravating circumstances, I see nothing wrong in that. Again, on the evidence before the magistrate I do not think that the sentence was manifestly inadequate. In particular there appears to have been no investigation of the Defendant's means. Certainly there was no evidence that the card was used for the purpose of gaining unlawful entry into Hong Kong, and I think the magistrate was right to hold that the Defendant's being a self confessed illegal immigrant did not justify the imposition of a substantially heavier sentence than would have been passed on a Hong Kong citizen for a like offence.

5. The application is refused.

30th May 1986