HKSAR v. WONG SIU YIN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 716 OF 1998

(On Appeal from NKC 4714/98)

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J U D G M E N T

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1. The Appellant appeals against sentences imposed in respect of 3 charges on 20th July 1998. The first count was of Using a Forged Identity Card; the second was Remaining in Hong Kong without the Authority of the Director of Immigration after having landed unlawfully in Hong Kong; the third was Possession of a Forged Hong Kong Identity Card.

2. The Appellant already has a previous similar record. In December 1992, she was sentenced to 12 months imprisonment for using the identity card of another person and a further charge of remaining in Hong Kong for which she was sentenced to 12 months; both sentences were ordered to be concurrent. In March 1996, the Appellant was convicted of theft and a further charge of remaining in Hong Kong without the authority of the Director of Immigration. The Magistrate in this case was told the Appellant had come from Hoi Fung because her son was hospitalised and she needed money, she said she had bought the card in China for $9,000.00 and that her son was cared for by her grandmother. I note that as her son is now 4, it is unlikely that he was born in 1992, so it is difficult to see what reason she had to come in that earlier period.

3. The Magistrate considered that the Appellant had pleaded guilty at the first available opportunity and gave credit for that plea. He declined Appellant's request to adjourn the matter for 4 weeks to establish whether or not the child was ill because it would make no difference to the result on the sentence. He noted that the proper sentence for possession of a forged identity card is 15 months' imprisonment after plea and that 15 months sentence was proper for the use of such a card. On the A and C charges, he imposed sentences of 15 months.

4. He relied on the case of HKSAR v. Ng Kam Kin Magistracy Appeal No. 208 of 1998 which establishes that 18 months imprisonment is a proper sentence in respect of a charge of remaining after having landed unlawfully in cases where the person had a previous similar conviction. That was the case here and a sentence of 18 months was imposed on the B charge.

Given the nature and the dates of the offences it would not have been incorrect for the Magistrate to have made at least part of these sentences consecutive.

5. However, he took the view that these three offences were part and parcel of the Appellant's attempt to remain in Hong Kong and ordered that the sentences be served concurrently. I see no reason to interfere with the Magistrate's sentences which are perfectly proper ones and well deserved by this Appellant. I did consider whether or not I should make the sentences run from today but decided not to.

6. The appeal against sentence is dismissed. The Appellant is advised that she faces further, longer, sentences if she returns to Hong Kong again.