HKSAR v. LI CHANG LI

[English Translation - 英譯本]

HCMA 935A/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO. 935 OF 2004

(ON APPEAL FROM KTCC NO. 5353 OF 2004)

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BETWEEN

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J U D G M E N T

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Yeung JA (giving the judgment of the Court):

Background

1. The Appellant Li Chang Li was charged with possessing a forged identity card, contrary to section 7A(1) of the Registration of Persons Ordinance (Cap. 177).

2. On 15 July 2004, the Appellant appeared before Mr. Kwok Wai Kin, Principal Magistrate of the Kwun Tong Magistracy.  She pleaded guilty to the charge and accepted the facts as stated in the charge.  The learned magistrate adjourned the case for sentence.

3. On 24 July 2004, having heard the mitigation put forward by the Appellant’s lawyer, the learned magistrate sentenced the Appellant to 12 months’ imprisonment.

4. The Appellant appealed against sentence.

5. The Appellant’s appeal against sentence was originally listed to be heard on 27 October 2004 before Deputy High Court Judge Fung.

6.  Deputy Judge Fung took the view that the case involved an important legal issue, which was whether illegal immigrants who possessed forged identity cards or identity cards belonging to others should be sentenced differently from visitors lawfully staying in Hong Kong who committed the same offence.

7. Deputy Judge Fung commented that there were diverse views among judges of the Court of First Instance on the issue.  Since the Department of Justice also considered it desirable to have clearer sentencing guidelines from the Court of Appeal, they sought to have the present appeal referred to the Court of Appeal pursuant to section 118(1)(d) of the Magistrates Ordinance  (Cap. 227).

8. Deputy Judge Fung shared the same view and therefore referred the case to this Court.  Mr Hylas Chung was assigned by the Legal Aid Department to act for the Appellant in this appeal.

Facts

9. The Appellant, aged 35, is a resident of Mainland China.  On 25 June 2004, she lawfully entered Hong Kong as a visitor holding a Permit for Travelling to and from Hong Kong and Macau, and started to stay at 4/F, 379 Reclamation Street, Mongkok, Kowloon (“the premises”).

10. On 12 July 2004, a Task Force of the Immigration Department raided the premises and intercepted the Appellant.  Upon demand, the Appellant produced a Permit for Travelling to and from Hong Kong.  The Permit bore her name and photograph, with her date of birth shown to be 27 May 1969.

11. The Task Force proceeded to search the premises and found in a wooden cabinet a forged identity card with number P808320(2).  The forged identity card also bore the Appellant’s name and photograph, but the date of birth of the cardholder was stated to be 27 May 1971.

12. The Appellant admitted that she possessed the above forged identity card.  When further enquiries were made of her, the Appellant further admitted that she had come to know a middleman in the Mainland, who offered to arrange for a forged Hong Kong identity card for her for a sum of RMB500, so that the she could find a job in Hong Kong more easily.

13. The Appellant accepted the middleman’s offer and gave him her photograph.  Four days later, the middleman handed her a forged Hong Kong identity card.  She noticed that the identity card bore her name and photo, but the other personal particulars were incorrect.

14. The Appellant subsequently entered Hong Kong as a visitor and started to stay at the premises.  She placed the forged identity card in a wooden cabinet inside the premises.

Reasons for decision

15. In his detailed Reasons for Sentence, the learned magistrate meticulously analysed a number of similar cases, in particular R v Shamin Nawaz [1994] 1 HKCLR 195 and HKSAR v Chan Man Mo [2001] 1 HKLRD 121.

16. The learned magistrate pointed out that the Shamin Nawaz case differed significantly from the Chan Man Mo case.  In Shamin Nawaz, the main factor affecting sentence was stated to be the offender’s purpose of possessing the forged identity card or identity card belonging to another, and not whether the offender was an illegal immigrant or overstayer.  However, it was decided in Chan Man Mo that whether the offender was lawfully staying in Hong Kong at the time of the offence was an important factor in determining sentence.

17. In Chan Man Mo, V. Bokhary J in her judgment suggested the following approach to sentencing (at p.130):

(1)     Where a person’s presence in Hong Kong was unlawful, either because he was an illegal immigrant or because he was an overstayer, a sentence of 15 months’ imprisonment upon a plea of guilty would be appropriate if he had in his possession a forged identity card or identity card belonging to another for the purpose of seeking employment or remaining in Hong Kong;

(2)     Where the offender’s presence in Hong Kong was lawful, he being neither an illegal immigrant nor an overstayer, and he found and possessed an identity card belonging to another, an appropriate sentence upon a plea of guilty would be 3 months’ imprisonment;

(3)     Where the offender’s presence in Hong Kong was lawful, he being neither an illegal immigrant nor an overstayer, the fact that he possessed a forged identity card or identity card belonging to another for the purpose of seeking employment would be an aggravating factor, and an appropriate sentence upon a plea of guilty would be 4 months’ imprisonment;

(4)     Where the offender’s presence in Hong Kong was lawful but he had actually used a forged identity card or identity card belonging to another to seek employment, an appropriate sentence upon a plea of guilty would be 12 months’ imprisonment.

18. The learned magistrate pointed out that the judgments of Chan Man Mo and Shamin Nawaz were inconsistent.  In Shamin Nawaz, Barnett J in his judgment made the following observations:

“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.”

19. The learned magistrate considered Barnett J’s reasons for sentence clear, logical and in line with other precedents.  He was also of the view that Barnett J’s reasons for sentence were applicable to visitors who lawfully stayed in Hong Kong.

20. The learned magistrate cited the following example in support of his view: “Suppose the offender was a visitor who possessed a forged identity card with the intention of using it for obtaining employment.  If the offence came to light on the last day of his lawful stay, then, taking the approach suggested in Chan Man Mo, the sentence would be 4 months’ imprisonment.  However, if the offender had overstayed for one day when the offence was discovered, then, taking the same approach, the sentence would be 15 months’ imprisonment.  In other words, although it was the same offender who possessed the same forged identity card with the same mens rea, the mere fact that he had overstayed for one day could lead to a difference of as much as 11 months in the length of sentence.”

21. Both Shamin Nawaz and Chan Man Mo were judgments made by a single judge of the High Court.  Where there was inconsistency between them, it was open to the learned magistrate to take either one as the basis of sentence.

22. The learned magistrate was of the view that, for the offence of possessing forged identity cards or identity cards belonging to others, the offenders had one thing in common: they were people who could not be lawfully employed in Hong Kong, and they sought to use the forged or others’ identity cards in the hope of obtaining employment in Hong Kong.

23. The learned magistrate pointed out that the said offence seriously violated the immigration policy of Hong Kong.  Worst still, it would directly impact local workers by depriving them of job opportunities and bringing down their wages, as a result of which the livelihood of Hong Kong people as well as the economic structure and social order of Hong Kong would be adversely affected.

24. The learned magistrate pointed out that the Appellant possessed a forged identity card with a view to seeking employment in Hong Kong.  On the basis of the reasoning in Shamin Nawaz, the learned magistrate adopted a starting point of 12 months’ imprisonment upon a plea of guilty.

25. As to the other grounds put forward by the Appellant, such as financial hardship and health problem, the learned magistrate did not consider them to be valid reasons for further reducing the sentence.  In the end, he sentenced the Appellant to 12 months’ imprisonment.

Grounds of appeal

26. Mr. Hylas Chung, Counsel for the Appellant, did not delve into the question of whether the reasons for sentence in Chan Man Mo were justifiable and logical.  He merely pointed out that Chan Man Mo had been adopted as the basis for sentencing in many similar cases and was therefore also applicable to the Appellant’s case.

27. Mr. Chung stressed that the Appellant had never produced the forged identity card to a police officer or brought it with her when she went about.  Nor did had learned magistrate found that the Appellant intended to use the forged identity card to further her stay in Hong Kong.

28. Mr. Chung submitted that, taking the approach suggested in Chan Man Mo, the Appellant should be sentenced to 4 months’ imprisonment.

29. This Court has to consider the objective of the relevant legislation and the effect of the legislation under the present circumstances of Hong Kong.  In the light of this, this Court then has to consider the appropriate sentence for possession of a forged identity card or identity card belonging to another person.

30. Under the current policy of the Central People’s Government and the government of the HKSAR, a large number of residents in Mainland China are allowed to come to Hong Kong on two-way permits for sightseeing or visiting relatives.  Given the relatively more relaxed procedure for approving applications for two-way permits and the quota available, the number of Mainlanders who lawfully came to Hong Kong increased sharply, with a corresponding reduction in the number of Mainlanders who unlawfully entered Hong Kong.  The statistics of the Immigration Department show that, from 2000 to 2004, the number of Mainlanders who came to Hong Kong using various travel documents soared from 3 million odd to 12 million odd, whereas the number of illegal immigrants who were arrested went down from 8,500 to less than 3,000.  From 2002 to 2004, the number of visitors who came lawfully to Hong Kong and were convicted of possessing forged identity cards increased by nearly eight times.

31. It is obvious that two-way permit holders who come to Hong Kong as tourists or visitors cannot work in Hong Kong, otherwise they will be committing the offence of contravening a condition of stay.  As a matter of fact, however, it has become very common for Mainlanders to work illegally in Hong Kong.  The Immigration Department has made tremendous efforts at publicity and taken various measures to crack down on illegal workers, but to little avail.

32. In order to tackle the illegal worker problem, the government of the HKSAR has formulated certain policies.  One of them is to require employers to employ only those who hold Hong Kong Permanent Identity Cards.  There are people who try every means to get hold of forged identity cards or identity cards belonging to others, so that they can circumvent the above policy and take up employment illegally in Hong Kong.

33. Illegal workers pose a serious problem in Hong Kong.  They deprive some of our local residents of job opportunities, resulting in a drastic increase in the unemployment rate. They also bring down wages, especially those of the workers in the lower class, who may then have to resort to public assistance to meet expenditure that exceeds their income.  This puts Hong Kong’s budgetary reserve under pressure and serves to widen the gulf between the rich and the poor, which in turn gives rise to a host of social problems.

34. We must face up to the above situation.  Cracking down on illegal workers is necessary and imperative.  Sufficiently deterrent sentences must be imposed for the offence of possessing a forged identity card or an identity card belonging to another.

35. Generally speaking, a document of identity cannot possibly be a plaything or collector’s item.  It follows that people who possess forged identity cards or identity cards belonging to others must be doing so for the purpose of concealing their true identity so that they can work illegally in Hong Kong. This is so whether their presence in Hong Kong is lawful or not.

36. Under these circumstances, the degree of culpability of a person who possesses a forged identity card or identity card belonging to another has nothing to do with the lawfulness or otherwise of his presence in Hong Kong.  Of course, to remain in Hong Kong unlawfully is an offence in itself, for which the offender will receive an appropriate sentence.

37. The judgment in Chan Man Mo was delivered in 2000, at a time when the main target was to combat illegal immigrants and overstayers. Nowadays, what the courts have to face up to is the problem of illegal workers, especially illegal workers who come to Hong Kong on two-way permits.

38. In our view, Chan Man Mo does not adequately address the illegal worker problem and ensuing social problems with which Hong Kong is now confronted.  Four months’ imprisonment is not a sufficiently deterrent sentence for those who come to Hong Kong unlawfully but possess forged identity cards or identity cards belonging to others in order to work illegally in Hong Kong.  We are also of the view that the sentence for someone who stays in Hong Kong lawfully and possesses a forged identity card or identity card belonging to another in order to seek employment and the sentence for someone who stays in Hong Kong lawfully and actually uses such a card to seek employment should not differ by as much as several folds.

39. In order to crack down on illegal workers more effectively, to preserve employment opportunities for local workers and to prevent the wages of workers in the lower class from being brought down excessively, the courts are to take a more severe approach in dealing with the offence of possessing a forged identity card or identity card belonging to another. Were this not done, unemployment and polarization between the rich and the poor would remain, the number of families in abject poverty would increase, and the ensuing social problems would become more and more serious.

40. In our judgment, for the offence of possessing a forged identity card or identity card belonging to another, even if the offender’s presence in Hong Kong is lawful, the starting point upon a plea of guilty should ordinarily be 12 months’ imprisonment, so as to reflect the seriousness of the offence and serve deterrent purposes.

41. If the offender has actually produced or used a forged identity card or identity card belonging to another in order to conceal his identity, work illegally or unlawfully further his stay in Hong Kong, then the starting point upon a plea of guilty should be 15 months’ imprisonment.

42. The above sentences are of course only applicable to ordinary cases.  Where there are special mitigating factors, the judge should exercise his discretion and impose such sentence as is appropriate in the particular circumstances of the case.

43. The sentence of 12 months’ imprisonment imposed on the Appellant is appropriate and should not be disturbed.  The appeal is dismissed accordingly.