HKSAR v. MA XI CHUN

HCMA494/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 494 OF 1999

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J U D G M E N T

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1. In this particular case, the Appellant was charged with two offences : (1) breach of condition of stay; and (2) using a forged identity card.

2. The particulars of the second charge of the using of a forged identity card were that the Appellant, on 22nd March 1999, at Heung Hung Bakery Company Ltd., Flat B, 3/F, Shui Ki Industrial Building, 18 Wong Chuk Hang Road, Aberdeen, without lawful authority or reasonable excuse, used a forged identity card bearing number P099907(5) in the name of Chu Man Yau.

3. The Appellant pleaded guilty to the 1st charge but denied the 2nd charge. After trial, the learned Magistrate convicted the Appellant and sentenced him to 15 months' imprisonment. He now appeals against conviction and sentence of this offence.

4. The Appellant was represented by Duty Lawyer at the trial and appeared in person at the hearing of this appeal. In his submission, he reiterated that what he had picked up and used was a photocopy of the identity card, not the actual identity card.

5. However, this issue had been fully canvassed during the trial. On this matter, the main prosecution witness was PW2 and the Appellant also elected to give evidence. Having heard the evidence, the Magistrate disbelieved the Appellant and rejected his account of the event. The Magistrate accepted the evidence of PW2, who was found to be an honest and reliable witness.

6. I have read the relevant transcript of the case and also the Statement of Findings prepared by the Magistrate. She had analyzed the evidence in this regard and came to a specific finding of fact that the Appellant had used a forged identity card to obtain employment. I do not see any ground to disturb that finding of fact which is supported by evidence. I shall dismiss the appeal against conviction accordingly.

7. As to the sentence of 15 months, the Appellant stated that it was too heavy. He said that this is the first time he had come to Hong Kong and he was not aware of the possible sentence. He said that he had three children to look after in China. The Appellant also pointed out that his original plan was to go to Thailand to seek employment rather than staying in Hong Kong. The Duty Lawyer did refer to his family difficulties in the mitigation before the learned Magistrate.

8. Regarding the sentence, it should be pointed out that the 15 months is for those cases where the defendants enter guilty pleas. Here the Appellant was convicted after trial, yet the Magistrate had imposed the usual 15 months. I am unable to find any ground to further reduce the sentence.

9. Hence, the appeal against sentence is also dismissed.