HKSAR v. WONG SIU WAI

1999, HCMA 314

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 314 OF 1999

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J U D G M E N T

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1. The Appellant appeared before T. S. Jenkins Equire sitting in the Magistrate's Court at Tuen Mun on 5th March this year and pleaded guilty to one charge of possession of forged identity card and one charge of breach of condition of stay.

2. He was sentenced to a total of 15 months' imprisonment by way of a term of that duration for the identity card charge and a concurrent term of one month on the breach of condition charge.

3. He now appeals against his sentence, complaining that his sentence is too severe.

4. In his Reasons for Sentence, the Magistrate said this:

"In sentencing the Defendant on the charges I bore in mind what was said by Mr. Justice Barnett in R. v. Shamin Nawaz MA No. 804 of 1993 where the Appellant successfully appealed against a sentence of 15 months' imprisonment imposed at first instance for a similar offence as Charge A. At page 198 he said as follows:-

'In my judgment, it matters not whether the offender is an illegal immigrant or an overstayer. The real question is the intention or purpose behind the possession of another's identity card. In other words, is there a link between the offender's status in Hong Kong and the identity card. The court must ask itself whether the offender has the card to obtain employment or otherwise further his remaining in Hong Kong. If the answer to that question is yes, a sentence of 15 months' imprisonment upon a plea of guilty cannot be said to be excessive. If, however, the answer is no, and no link is established between the offender's status in Hong Kong and the identity card, the offence in relation to the identity card falls to be treated as an unconnected offence.'

In this case the Defendant possessed a forged ID card as supposed to a lost one in Shamin Nawaz's case and I was satisfied that the Defendant had the forged ID card in his possession to further his unlawful stay in Hong Kong and/or to obtain employment. In other words I found there was a link between the defendant's status in Hong Kong as an overstayer and the forged identity card. In those circumstances I considered a 15 months sentence of imprisonment appropriate on Charge A. There was nothing in the defendant's circumstances which enable me to reduce it. Charge B merited a short concurrent custodial sentence and I considered 1 month imprisonment sufficient given the Defendant's plea. I so sentenced."

5. In my view, the Magistrate has given careful consideration to all relevant matters and he was entitled to sentence the Appellant as he did.

6. In Court this morning, the Appellant has handed me two documents and urged me to reduce his sentence on humanitarian ground. Having considered the contents of these two documents, I do not consider that there is any basis for me to disturb the sentence imposed by the Magistrate.

7. The appeal is therefore dismissed.