HKSAR v. TSE KWONG WA

HCMA 480/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 480 OF 2002

(ON APPEAL FROM ESCC 1356/2002)

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J U D G M E N T

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1. On 2 May this year the Appellant appeared before I S C Candy Esquire in the Magistrate's Court at Eastern; pleaded guilty to a charge of possession of a forged identity card, contrary to s.7A(1) of the Registration of Persons Ordinance, Cap. 177; and admitted the facts which emerged from the following exchange between him and the Magistrate:

"Court:	You were seeing by the officer behaving in a manner which he found suspicious so you were stopped and asked to produce a Chinese two-way permit but you continued to behave in a manner which attracted the officer's attention. He further searched you and found that you were in possession of this Hong Kong Identity card which bored a photograph of you.
Defendant:	Not search me but I showed it to him.
Court:	Alright.
Defendant (not interpreted):
Court:	We are not having a discussion here. You were in possession of this Hong Kong Identity Card which apparently bored your photograph. This let the officer to suspect that the Hong Kong Identity Card was forged. You were questioned about this then you admitted that you had bought this identity card in the Mainland. Are these facts correct?
Defendant:	Correct."

2. Sentencing was adjourned to 7 May 2002, and on that day the Magistrate sentenced the Appellant to 6 months' imprisonment.

3. At the time of his offence, the Appellant was here as a visitor from the Mainland on a two-way permit. His presence in Hong Kong was legal, he being neither an illegal immigrant nor an overstayer. Whatever may or may not have happened afterwards if the Appellant had not been arrested, his offence did not involve the use of the forged identity card. For sentencing purposes, there are no circumstances which distinguishes this offence of possession of a forged identity card (which is punishable under s.7A(1)) from an offence of possession of an identity card relating to another person (which is punishable under s.7A(1A)).

4. The Appellant having pleaded guilty, the appropriate sentence is one of about 3 months' imprisonment. The sentence of 6 months' imprisonment passed by the Magistrate is manifestly excessive. This appeal is allowed and I reduce Appellant's sentence by half to 3 months' imprisonment. I should add that the prosecution concedes that this appeal against sentence should be allowed for the reasons and to the extent which I have indicated.