HKSAR v. LU YANGCHAN

HCMA707/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 707 OF 2011

(ON APPEAL FROM KCCC 3715 OF 2011)

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BETWEEN

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REASONS FOR JUDGMENT

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1.  On 23 September 2011, the Appellant pleaded guilty before Ms Bina Chainrai, Magistrate, to a total of 4 charges in relation to forged identity card and breaches of conditions of stay. The Appellant was sentenced on the same day to a total of 15 months’ imprisonment. The 4 charges were :

Charge 1:  possession of forged identity card, contrary to s. 7A(1) of the Registration of Persons Ordinance, Cap. 177;

Charge 2:  using a forged identity card, contrary to s. 7A(1) of the Registration of Persons Ordinance, Cap. 177;

Charge 3:  breach of condition of stay — overstay, contrary to s. 41 of the Immigration Ordinance, Cap. 115; and

Charge 4:  breach of condition of stay — taking up employment, contrary to s. 41 of the Immigration Ordinance and r. 2(1)(a) of the Immigration Regulations, Cap. 115. 

2.  The learned Magistrate sentenced the Appellant to respectively imprisonment for 12 months, 15 months, 4 weeks and 4 weeks, all to run concurrently.  The Appellant is of the view the “sentence was too severe” and lodges the present appeal against sentence. 

3.  I dismissed the appeal in the hearing on 8 December 2011 and I now give my reasons. 

The facts

4.  On 21 September 2011, the Appellant was arrested as a result of an anti-illegal employment operation for working at a shop at the Cheung Sha Wan Wholesale Fish Market (“the Shop”).  He was seen pushing a trolley at the material time (Charge 4). 

5.  Upon enquiry, the Appellant produced his two-way-permit as his proof of identity.  The permit showed that the Appellant had overstayed for about 5 months (the validity of his stay expired on 18 April 2011) (Charge 3).  

6.  A forged Hong Kong identity card with the same name and date of birth as the said permit was found on the Appellant (Charge 1).  The accounting clerk of the Shop confirmed that the Appellant had used the said forged identity card to apply for job on 19 August 2011 (Charge 2) and started working there the next day.  

7.  The Appellant admitted under caution that he bought the forged identity card at RMB 10,000 and started working at the Shop on 20 August 2011 earning a monthly income of HK$7,500.  

The Appellant’s background

8.  The Appellant was aged 53 and had a clear record.  He worked as a farmer at Liaoning and was the sole breadwinner of a family consisting of his deaf and dumb wife who was suffering from paralysis and two children.  He had committed the present offences for his family out of financial needs. 

The Magistrate’s Reasons for Sentence

9.  The Magistrate considered that the only mitigation of weight was the Appellant’s guilty pleas. 

10.  For Charges 1 and 2, the Magistrate relied on the authority of HKSAR v Li Chang Li [2004-2005] HKCLRT 193 and imposed 12 months’ imprisonment for possession of forged identity card (Charge 1) and 15 months’ imprisonment for using it (Charge 2).  As for Charges 3 and 4, the Magistrate relied on the authority of HKSAR v Xie Chun Mei [2004] 1 HKLRD 865 and sentenced the Appellant as she did.  

11.  Having considered the totality principle, the Magistrate imposed wholly concurrent sentences for all 4 charges and came to a final total sentence of 15 months’ imprisonment. 

Merits of the appeal

12.  It is clear that the sentences for Charges 1 and 2 are in line with the sentencing guideline as laid down in the case of Li Chang Li, supra, and so the Magistrate cannot be faulted for imposing the sentences she did. 

13.  There is no sentencing guideline for Charge 3 but the period of overstaying and whether the defendant had taken up illegal employment are important sentencing considerations, the latter being an aggravating factor : 香港特別行政區訴王玉梅 (unrep.) HCMA526/2006 at paras. 9 and 12.  In view of the fact that the Appellant had been overstaying for nearly 5 months and in the course of which he had taken up employment, a sentence of 4 weeks’ imprisonment after plea cannot be considered manifestly excessive. 

14.  As for Charge 4, in the case of 香港特別行政區訴李秀滿 (unrep.) HCMA792/2006, Deputy High Court Judge M. Poon (as she then was) relied on the case of Xie Chun Mei and upheld a sentence of 2 months’ imprisonment after plea for the accused working in Hong Kong in breach of her condition of stay.  In such circumstances, the sentence of 4 weeks’ imprisonment imposed on the Appellant in the present case is appropriate. 

15.  Furthermore, the overall sentence of 15 months’ imprisonment cannot be considered manifestly excessive in the light of the following authorities with similar facts : 李秀滿, supra (17 months’ imprisonment), 王玉梅, supra (19 months’ imprisonment) and 香港特別行政區訴刁連衞 (unrep.) HCMA696/2010 (22 months’ imprisonment). 

16.  Finally, the family condition of the Appellant does not constitute humanitarian ground to justify a further reduction in the sentence : see王玉梅at para. 15, 李秀滿at paras. 8-9 and刁連衞at para 7.  I therefore agree with the Magistrate that, other than the guilty pleas, there are no other mitigation of weight in the present case.  

17.  In the light of the above, there is no merit in the Appellant’s appeal against sentence and the same was therefore dismissed.