THE QUEEN v. LEE KIT SHING

Mag. App. No.133 of 1992

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H E A D N O T E

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POSSESSION OF AN IDENTITY CARD RELATING TO ANOTHER PERSON - KEEPING IN WALLET NOT AGGRAVATING FACTOR.

IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 133 OF 1992

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J U D G M E N T

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1. The appellant pleaded guilty before Mr Meredith in Eastern Magistrates Court to three charges namely:

(A)     Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.

(B)     Resisting arrest.

(D)     Possession of an identity card relating to another person.

He was sentenced to 15 months and 18 months concurrent on the A and D charges and to two months consecutive on the B charge.

2. The appellant was arrested after a struggle at a hillside opposite a construction site. The identity card was found in his wallet. He claimed that he had swum to Hong Kong three days earlier but had picked up the identity card shortly before his arrest.

3. The magistrate did not accept the latter claim but said in his Reasons for Sentence "Even if he had done so, he had tucked it into his wallet which was some evidence that he intended to use it for his own purposes".

4. Mr Lee, for the appellant, submits that the magistrate has misinterpreted R. v. So Man King [1989] 1 HKLR 142, in particular the direction at p.145 that "... the Court should take into account, by upward adjustment, ... other circumstances which may aggravate the offence, such as the actual use of a forged or other person's identity card to obtain some particular benefit".

5. In R. v. Cheung Tak Yee MA No.104 of 1991, Barnes, J. cited R. v. Wong Pik Yu MA No.968 of 1988, R. v. Ma Lung MA No.1210 of 1988 and Attorney General v. Lam Ping Churn Application for Review No.10 of 1988, as establishing the principle that "where the production of the identity card is in the course of an application for employment, the offence is not the type which the Court of Appeal had in mind as an aggravating factor ...".

6. The same judge in R. v. Or Chung Ping and others MA No.334 of 1991 held that the further use of the identity card to open a bank account also did not amount to an aggravating factor.

7. I am content to follow the decisions of Barnes, J. and hold that keeping an identity card in a wallet, without evidence as to its intended future use, is not an aggravating factor.

8. The appeal is allowed in part and the sentence on charge D reduced to 15 months imprisonment.