THE QUEEN v. LAM SHUI LEUNG AND OTHERS

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Headnote

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Sentence - relevance of the 'usual' sentence passed", on similar facts, for a different offence which has overlapping area of criminality, and which carries a higher maximum -15 months imprisonment appropriate for an illegal immigrant who pleads guilty to using another person's identity card.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NOS. 797 & 836 OF 1986

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BETWEEN

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JUDGMENT

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1. These appeals, all from the same magistrate, are dealt with together as they raise the same ratter. The appellants were all convicted of using another person's identity card, contrary to regulation 12(3) of the Registration of Persons Regulations. The maximum punishment provided for that offence is a fine of $5,000 and 2 years imprisonment. The appellants pleaded guilty and were each sentenced to 12 months imprisonment. The facts in each case were that the appellant purchased the identity card in China, illegally came to Hong Kong and, apparently by using the identity care, obtained employment here. Each appellant has a clear record.

2. The learned magistrate stated that the 'usual' sentence for this offence is 12 months to 18 months imprisonment. Investigations show that is incorrect. I have been told by Counsel that there is considerable variance between the sentences imposed by different magistrates, and that they would like sore guidance.  In the case of R. v. WONG Leung-kwong, Magistracy Appeal 738/86 th judge considered a sentence of 6 months imprisonment proper for a person who bought another person's identity card in China and came to Hong Kong and got a job. The judge did not apparently have any information as to the 'usual' sentence.

3. The maximum sentence for being an illegal immigrant contrary to section 38 of Cap. 115 is a fine of $5,000 and imprisonment for 3 years, which is 1 year higher than that for the offence of which the appellants were convicted. Of course the appellants were not convicted of being illegal immigrants, and must not be sentenced as if they had been so convicted. A person may not be sentenced for an offence of which he has not been convicted, however, it is permissible to take into account facts and circumstances (which might of themselves fortuitously constitute separate offences) in order to determine the gravity and appropriate sentence on a particular charge, Lane v. Auckland City Council [1975] 1 N.Z.L.R. 353, R. v. LAM Chun-yau Criminal Appeal 622/85. The use the appellants were making of the identity cards was to enable themselves to masquerade as persons entitled to be in Hong Kong. That is a relevant factor for consideration when sentencing for the offence of using another person's identity card. The 'usual' sentence on a person convicted of being an illegal immigrant is 15 months imprisonment. In the light of the maximum sentence permitted for the two different offences, it would not be surprising if a somewhat similar sentence were considered appropriate for a person who is convicted of using another person's identity card, in circumstances where it is being used in order to illegally remain in the territory.

4. It was stated in R. v. CHAN Ming Criminal Appeal 353/83, and more recently in R. v. NG Sui-hing Criminal Appeal 362/85, that a sentence of 15 months imprisonment was appropriate to the case of an illegal immigrant who pleaded guilty to possession of a forged identity card, an offence for which the maximum punishment on conviction an indictment is a fine of $50,000 and 7 years imprisonment, and on summary conviction a fine of 20,000 and 2 years imprisonment. Before me, it was submitted on behalf of one of the appellants, that the maximum punishment being lower for possession of another person's identity card than for possession of a forged identity card, therefore, in otherwise similar circumstances, the sentence ought to be lower for the former offence than for the latter. The judge in R. v. WONG Leung-kwong accepted that line of reasoning. I regret I cannot agree. It seems to me that it overlooks the fact that the two offences encompass different degrees of criminality, which must be provided for in the maximum punishment. It is perhaps an idle exercise, but I think, in the upper band of seriousness of each of the offences, one would expect to find more serious criminal conduct in the forged cards cases than in the cases involving another person's card. A simple example is that there are more likely to be cases of a charge of possession of a large number of forged cards, than of use of a large number of cards of other persons. One is more likely to have a large wholesaler of forged cards, than of cards of another persons.  It is therefore appropriate that, providing for suitable punishment for the worst type of each case, the maximum provided for the forged cases ought to be higher than for cases relating to another person's card. It does not follow that where the circumstances of particular cases are identical, except for the nature of the card, the sentences should differ. For example, if police raided a premises and found two men who had illegally entered Hong Kong together, and together obtained employment here, one using for that purpose another person's card that he had bought in China, and the other using a forged card that. he had bought in China, I do not consider it would be right to sentence them differently, though the maximum for the offence of the former is less than for that of the latter. Actually a case could be argued for a heavier sentence being imposed for use of another person's card than for possession of a forged one, as the latter is, what is referred to, incorrectly in my view, as a 'victimless crime', whereas in the former the true owner is a victim.

5. I have been provided with a table showing the sentences magistrates have been imposing for this type of offence over the past 21 months. I am very cautious of relying on such a table, as it can present a distorted picture, in the absence of full details of the circumstances relating to each case. For what it is worth, the table shows sentences increasing in severity over the period. At the beginning of the period sentences were usually of 6 months imprisonment, then increased to 9 months, and after a 6 months hiccup returned to 9 months, and recently 12 months has been quite common, there is only one sentence as high as 15 months imprisonment.

6. The circumstances of using another person's identity card in order to masquerade as a person entitled to be in Hong Kong is within the band of serious offences under regulation 12(3) and on a plea of guilty, a sentence of 15 months imprisonment would normally be appropriate. However, I do not increase the sentences of the appellants. I dismiss the appeals.