HKSAR v. HIRA, KANIZ FATEMA

HCMA 202/2023

[2023] HKCFI 2424

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 202 OF 2023

(ON APPEAL FROM KTCC 839 OF 2023)

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REASONS FOR JUDGMENT

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1.  At the hearing of the appeal I dismissed the appellant’s appeal against sentence. Below are my reasons.

2.  On 5 June 2023 the appellant pleaded guilty before the Acting Principal Magistrate K. H Cheang to the following three charges: -

Charge 1:   Using a forged identity card, contrary to section 7A(1) of Cap.177, Laws of Hong Kong

Charge 2:   Possession of a forged identity card, contrary to section 7A(1) of Cap.177, Laws of Hong Kong

Charge 3:   Overstayer taking employment & establishing business, contrary to section 38AA(1)(c) and 38AA(2) of Cap.115, Laws of Hong Kong

3.  Upon the appellant’s plea of guilty she was sentenced to 18 months’ imprisonment on Charge1, and 15 months’ imprisonment on Charges 2 and 3 respectively.  The magistrate ordered the terms of imprisonment to run concurrent to each other resulting in a total sentence of 18 months’ imprisonment.

4.  The appellant now appeals against her sentence.

Facts of the case

5.  The background facts are straightforward.  On 3 May 2023, the appellant was intercepted by a police officer in the kitchen of a restaurant known as “Red Chicken” wearing an apron.

6.  During an enquiry with the appellant she produced a Hong Kong identity card bearing number P216606(0) in the name of HIRA Kaniz Fatema (the “ID Card”) to the police officer.  Upon a registration‑of‑person check against the ID card it was confirmed that the name of the holder of the ID card as presented was incorrect and the ID card was forged.

7.  The manager of the restaurant hired the appellant to work as a kitchen hand between 2 February 2023 and 3 May 2023 inclusive believing the forged ID card the appellant produced to him was a genuine one.

8.  Enquiry with the Immigration Department revealed that:

(i)    the defendant was formerly a domestic helper but her employment contract was terminated;

(ii)   she was allowed to stay in Hong Kong until 10 December 2014 but she overstayed since 11 December 2014; and

(iii)  she lodged a non-refoulement claim in Hong Kong in 2018 and was released on recognizance on 1 November 2018 with one of the conditions that she was prohibited from taking any employment, whether paid or unpaid, or establishing or joining in any business in Hong Kong.

Mitigation

9.  The defendant is 35 years old.  It was submitted that her husband passed away long ago and she had two daughters, aged 11 and 13 respectively, in Bangladesh.  She bought the ID Card in order to get a job because she was in need of money to pay for her daughter’s surgery expenses as her daughter was suffering from some bladder problems.  She was remorseful and asked the court for leniency.

The sentence

10.  In sentencing the appellant the magistrate took into account she had three previous convictions to which one was similar to charge 1.  The other two convictions were for breach of condition of stay.  For the charge of using a forged Hong Kong identity card, she was sentenced to a term of 15 months’ imprisonment in September 2017.

11.  For the 1^st charge of using a forged ID card the magistrate followed the cases of HKSAR v Li Chang-li [2005] 1 HKLRD 864 and HKSAR v Tran Viet Thanh [2012] 1 HKLRD 903.  The magistrate referred to what the Court of Appeal said in Tran as follows:

“17. It is clear that a sentence of 15 months’ imprisonment for possession of a forged identity card by an illegal immigrant is consistent with the long-established authorities...

...

21. ... Properly understood, Li Chang Li simply stated that the standard sentence should be 12 months’ imprisonment even if the defendant is entitled to enter or remain in Hong Kong lawfully. But where the false identity card was actually used such as to gain employment when his condition of stay may prohibit employment locally, the sentence could be enhanced to 15 months.

...

24. The sentence for the 1^st charge of possession of a forged identity card is 15 months’ imprisonment.  We would like to note that the sentence for this offence could well be enhanced to 18 months because of a previous similar conviction...”

12.  In the magistrate’s reasons for sentence[1] at para 14 the magistrate stated that with the benefit of hindsight, charge 2 was an offence under section 7A(1) of Cap.177 and being similar to charge 1 together with the similar conviction and relying on Li Chang-li he should have imposed a sentence of at least 18 months’ imprisonment.

13.  The magistrate considered HKSAR v Usman Butt and Anor [2010] 5 HKLRD where the court held that a term of 15 months’ imprisonment is appropriate in the case of conviction upon a guilty plea for Charge 3.

Grounds of appeal

14.  The appellant complains that her sentence is too severe.  She has submitted two written submissions dated 6 June and 10 July 2023.  She clarified part of her written submissions orally at the hearing.

15.  The first ground of appeal is for the court to reduce the sentence on humanitarian grounds.  The appellant claims that that the youngest of her two daughters who is 11 years old daughter is in need of an operation.  She therefore only took up employment to pay the fees for the operation.  The appellant seeks for a reduction of sentence as the reason for her re-offending was because of the necessity to raise funds for her daughter’s medical fees.  The appellant avers her sentence is too long as her two young daughters who live in Bangladesh are dependent on her a single mother.  She claims that as soon as she has served her term of imprisonment she will apply to return to her home country Bangladesh to care for them.

16.  The second ground of appeal is that the appellant met a female inmate during her incarceration who was sentenced to 16 months’ imprisonment for her second offence of using a forged ID card.  She asks that she be sentenced to shorter or similar term of imprisonment.

Respondent’s submissions

17.  Counsel for the respondent Mr Daryanani submits that the sentence imposed by the magistrate is correct.  However, in his customary fairness, he has brought to the court’s attention the fact that the magistrate was not informed nor provided with information that the appellant spent 105 days in administrative detention between the 20 July 2018 and 1 November 2018 as should have been the case according to HKSAR v Eftakhar Beg [2015] 5 HKC 427.  In the circumstances the magistrate had a discretion to consider reducing the sentence based on the appellant’s time spent in administrative custody even though it was unrelated to the offence in question.

18.  As this magistracy appeal is re-hearing on the papers it is for this court to consider if it should exercise its discretion to reduce the sentence imposed on the basis of the time spent by the appellant in administrative detention.

Consideration

19.  The magistrate correctly took into account the cases of Li Chang-li, Tran Viet Thannh and Usman Butt in considering the sentence to be imposed for the three charges.

20.  The appellant had 3 previous convictions of which one was similar to charge 1 of Using a forged ID card.  She was sentenced to 15 months’ imprisonment in 2017.  The magistrate was correct to enhance the sentence in charge 1 to 18 months’ imprisonment as this was the appellant’s second similar offence.  Financial pressure on the appellant in obtaining employment is not a not factor warranting a reduction of her sentence.

21.  The appellant feels aggrieved because she contends a fellow inmate has received a shorter term of imprisonment than her for a second similar conviction.  The appellant is unable to identify or inform the court of the inmate’s name or case number, the reasons for the disparity of sentence, if any, is therefore unknown.

22.  This court being the appellate court is concerned with whether the sentence imposed in the present case is manifestly excessive.  Having regard to the sentences imposed and cases relied upon by the magistrate there can be no criticism of the sentences imposed.

Administrative detention

23.  The present offences were committed about five years after the appellant had spent time in administrative detention.  This was her second similar offence of using a forged ID card.  She had been working for a period of about four months.  In view of the length of time since her administrative detention, the nature and circumstances of the subsequent offences I find no grounds to exercise my discretion to reduce the appellant’s sentence by the time spent by her in administrative detention.

24.  There are no merits in this appeal against sentence and the appeal is dismissed.