R. v. SAGHIR AHMAD

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 288 OF 1996

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J U D G M E N T

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1. The Appellant was convicted of the following charges by his own plea of guilty :

(1) Giving false information to attempt to mislead a police officer with intent;

(2) Possession of an identity card relating to another person; and

(3) Breach of condition of stay.

2. On 22nd January 1996 the Appellant was intercepted by police officers and he produced a Pakistani passport not in his name as his identity document. This passport was endorsed to enable the holder to remain in Hong Kong until 12th September 1993 only. He was arrested for breach of condition of stay. When he was searched, an identity card in the name of the passport holder was also found. The photograph was not that of the Appellant. He was arrested for possession of an identity card of another person. He admitted that he picked up the identity card and kept it. The Appellant signed statement to the police in the name of the holder and produced it as his own to the police. Subsequent investigation revealed he was not the passport holder. He admitted that he came to Hong Kong in March 1992 and was permitted to stay until 12th September 1993. But he later lost his passport. Thus the offence in the (1) charge was committed.

3. In sentencing the Appellant, the magistrate found little mitigating circumstances. She said that the Appellant was a legal visitor from Pakistan but he ignored his condition of stay and as a result overstayed for more than three years. She considered six months was the appropriate sentence in the circumstances. As for the charge of giving false information, having regard to the maximum sentence of six months imprisonment, the magistrate imposed a sentence of two months imprisonment. On the charge of possession of an identity card relating to another person, the magistrate referred to Wong Keung Mag.App.212/91 where it was held that the normal sentence of 15 months imprisonment for immigration offences only applied to those who were illegally in Hong Kong. Nevertheless, she imposed a sentence of nine months for that offence. In her reasons for sentence, she referred to R. v. Shamin Nawaz (1994)1 HKCLR 195 which was not before her when she imposed the sentences. Barnett J. in this case held that if there was no link between possession of the identity card and the offender's status in Hong Kong, the offence should be treated as one independent of the immigration offences and three months imprisonment would be appropriate. The magistrate on reflection, very fairly, indicated that three months should have been imposed.

4. Mr Veltro for the Crown agreed that three months would have been appropriate in the circumstances since there was no evidence of any link between the Appellant's status in Hong Kong and his possession of the identity card.

5. Having regard to the Appellant had overstayed for more than three years and the manner in which the Appellant adduced the passport as his own to the police, the sentences of two months for (1) charge and six months for (3) charge cannot be in anyway manifestly excessive.

6. The sentence on the (2) charge was manifestly excessive and the proper sentence should have been three months imprisonment.

7. The appeal against sentence is allowed to the extent that the sentence of nine months on the (2) charge be set aside and a sentence of three months imprisonment substituted.