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HCMA001059/1999
HCMA 1059/1999
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HEADNOTE
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(1) Where the circumstances are otherwise the same, the sentence ought to be the same whether the identity card was forged (so that the use or possession thereof offended against s. 7A(1) of the Registration of Persons Ordinance, Cap. 177) or related to another person (so that the use or possession thereof offended against s. 7A(1A) of that Ordinances).
(2) Where the offender's presence in Hong Kong was illegal at the time of his offence, whether because he was an illegal immigrant or because he was an overstayer, a sentence of about 15 months' imprisonment upon a plea of guilty would be appropriate if he had a forged or somebody else's identity card for the purpose of obtaining employment or otherwise furthering his remaining in Hong Kong.
(3) Where the offender's presence in Hong Kong was legal at the time of his offence, he being neither an illegal immigrant nor an overstayer, possession of somebody else's identity card which he found would merit a sentence of about three months' imprisonment upon a plea of guilty.
(4) Even if the offender's presence in Hong Kong was legal at the time of his offence, because he was neither an illegal immigrant nor an overstayer, the fact that he intended to use a forged or somebody else's identity card to seek employment would be an aggravating factor, and the appropriate sentence upon a plea of guilty would be about four months' imprisonment.
(5) If he had actually used a forged or somebody else's identity card in seeking employment, then a sentence of about a year's imprisonment would be appropriate even though his presence in Hong Kong was legal at the time of his offence because he was neither an illegal immigrant nor an overstayer.
(6) It is an element of aggravation if an offender, whether here legally or illegally, actually produced a forged or somebody else's identity card to a police officer conducting an identity card check. Such conduct ought to be reflected by about an extra two months' imprisonment. Another way of putting it would be that it is an element of mitigation if the offender refrained from producing the identity card to the officer conducting the check. That element of mitigation was absent in HKSAR v. Lam Kai Kwong, Magistracy Crim. App. No. 882 of 1998, 6 November 1998 and explains a sentence of only four months' imprisonment for someone who armed himself with a bogus identity card before coming to Hong Kong.
(7) In R v. Ghazanfar Iqbal, Magistracy Crim. App. No. 654 of 1993, 21 September 1993, at p. 2, Leong J (as he then was) said:
"Another significant feature is that he had not come from and has no connection with places which are commonly known to be sources of illegal immigrants e.g. China or Vietnam. He is also not connected with Hong Kong."
This reflects the principle that where deterrent sentences are passed to combat prevalence, lesser sentences are of course to be passed where a material feature of that prevalence is absent.
HCMA 1059/1999
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MAGISTRACY APPEAL NO. 1059 OF 1999
(On Appeal from SPCC 5484 of 1999)
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HKSAR |
Respondent |
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CHAN MAN MO |
Appellant |
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Coram: Hon V. Bokhary J in Court
Date of Hearing: 13 January 2000
Date of Judgment: 3 February 2000
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J U D G M E N T
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1. This appellant is a man of previous good character in his early 30's. On 24 August 1999 he appeared before Miss Bina Chainrai in the Magistrate's Court at San Po Kong on one charge of possession of a forged identity card, contrary to s. 7A(1) of the Registration of Persons Ordinance, Cap. 177. He pleaded guilty and admitted the facts set out in the "Brief Facts of the Case" handed up to the Magistrate by the prosecution. After hearing mitigation, the Magistrate sentenced the appellant to one year's imprisonment. The appellant applied to the Magistrate under s. 104 of the Magistrate's Ordinance, Cap. 227, for a review of the sentence which she had imposed on him. At the conclusion of that application on 14 September 1999 the Magistrate refused to alter the sentence. The appellant now appeals to this Court seeking a reduction of sentence.
2. The "Brief Facts of the Case" admitted by the appellant reads as follows, with the appellant referred to as "Deft" and the Police Constable who arrested him referred to as "PW1":
" About 0935 hours on 1999.08.20, PW1 was performing snap check operation (vehicle) outside No. 160, Hammer Hill Road, Wong Tai Sin. He boarded a KMB route No. 3D bus and conducted an identity check on passengers. PW1 asked the Deft for his I/D card where the Deft produced a HK I/D card (exh.1) for inspection. Having examined the exh.1, PW1 suspected that it might be forged as the digit thereon was vague. Upon questioning, the Deft admitted that he bought the card in Shanwei at $6,000-RMB in early July this year. He entered HK through Lowu Control Point on 12-JUL-99 with his official two-way permit, which allowed the Deft to stay in the period between 12-JUL-99 and 12-OCT-99. PW1 then declared arrest and cautioned the Deft. Under cautioned, Deft admitted the offence.
2. Having landed in Hong Kong lawfully, Deft stayed with his wife (a HK resident) in her flat in Tai Po. Deft stated that his wife and children are HK resident and he bought the exh.1 was for the purpose of finding a job in Hong Kong.
3. Exh.1 was sent to the Government Laboratory for analysis where it was confirmed by Dr WONG Koon-hung, PW3, to be a forged Hong Kong Identification Card. According to Dr WONG, the card was a forgery by insertion of an extraneous transparency bearing the portrait and personal particulars of the current cardholder."
3. Immediately after the appellant had admitted those facts, the Magistrate asked whether it was admitted that the appellant's possession of the forged identity card was to further his stay in Hong Kong to obtain employment in Hong Kong. The Duty Lawyer representing the Appellant replied:
"He intended to use the ID card to look for a job in Hong Kong, but was unable to do so."
4. Section 7A(1) of the Registration of Persons Ordinance provides that:
"Any person who without lawful authority or reasonable excuse uses or has in his custody or possession a forged identity card or other document issued under this Ordinance commits an offence and is liable -
(a) on conviction on indictment to a fine at level 6 and to imprisonment for 10 years; and
(b) on summary conviction to a fine at level 5 and to imprisonment for 2 years."
5. A fine at level 5 means a maximum fine of $50,000 while a fine at level 6 means a maximum fine of $100,000: Criminal Procedure Ordinance, Cap. 221, s. 113B and Schedule 8.
6. Five perfected grounds of appeal against sentence have been filed on behalf of the appellant. But they are not really discrete grounds. They go together; and the first four grounds are all directed to the contention in the fifth and final ground that the sentence in the present case is wrong in principle or too severe. So rather then dealing with the grounds separately, I will recite them and then deal globally with all the points which they raised.
7. The grounds read:
"(1) In imposing a sentence of 12 months, the Learned Magistrate purportedly applied the guideline in R v. Shamim Nawaz [1994] 1 HKCLR 195 (See para. 9 of Reasons for Sentence at P10 of bundle). However, the Learned Magistrate failed to consider sufficiently at all that the Appellant in that case was at the time of offence an overstayer and thus there was an evidential link between the offender's unlawful status in Hong Kong and the identity card, whereas at the time of offence the Appellant was still lawfully in Hong Kong.
Particulars
(i) In the admitted facts at P5 of the Appeal bundle it was stated that the Appellant was found in possession of the forged identity card by police on 20.8.99 which was still within the period, i.e. 12.7.99 to 22.10.99, the Appellant was lawfully permitted to remain in Hong Kong.
(ii) The fact that in the same admitted facts the Appellant admitted that he bought the forged identity card for the purpose of finding a job in Hong Kong, nor the further admissions by counsel in mitigation on 24.8.99 that the Appellant intended to use the identity card to look for a job in Hong Kong but was unable to do so could not effectively change the lawfully status of the Appellant on the date of offence.
(2) When referring to the case of R v. Ghazanfar Iqbal M.A. 654/1993, the Learned Magistrate failed sufficiently or at all to consider that the presence of the Appellant in that case was not dependent upon his possession of the identity card which though illegally was not to justify his presence in Hong Kong. Having failed to consider the significant features in the above, the Learned Magistrate wrongly declined to adopt the 3 months' imprisonment in Ghazanfar Iqbal as the appropriate sentence.
(3) When referring to the decision in R v. Lam Shui-leung [1997] HKLR 57, the Learned Magistrate failed to consider sufficiently or at all that "It does not follow that where the circumstances of a particular cases are identical, except for the nature of the card, the sentences should differ" and thus wrongly disregarded the case as not relevant in considering whether to adopt the sentence of 3 months in R v. Ghazanfar Iqbal.
(4) In concluding that there was a link between the Appellant status in Hong Kong as visitor and his possession of the forged identity card, the Learned Magistrate failed sufficiently or at all to consider that the purpose of his visiting Hong Kong in possession of the forged identity card was trying to look for a job but was unable to find one was not evidence that his presence in Hong Kong was dependant upon his possession of the forged identity card but he was lawfully in Hong Kong in terms of what is commonly called a 'two-way permit'. Having failed to consider the above, the Learned Magistrate wrongly rejected HKSAR v. Chan Tsan Fai M.A. 312/98 as not applicable to the Appellant and thus wrongly declined to adopt the 3 months' sentence in the said case as appropriate sentence.
(5) In all the circumstances, the sentence is wrong in principle or too serve."
8. In R v. Shamim Nawaz [1994] 1 HKCLR 195 at p. 198 Barnett J said:
"In my judgment, it matters not whether the offender is an illegal immigrant or an overstayer. The real question is the intention or purpose behind the possession of another's identity card. In other words, is there a link between the offender's status in Hong Kong and the identity card. The court must ask itself whether the offender has the card to obtain employment or otherwise further his remaining in Hong Kong. If the answer to that question is yes, a sentence of 15 months' imprisonment upon a plea of guilty cannot be said to be excessive. If, however, the answer is no, and no link is established between the offender's status in Hong Kong and the identity card, the offence in relation to the identity card falls to be treated as an unconnected offence."
9. The first distinction between R v. Shamim Nawaz and the present case is that Mr Shamim Nawaz's offence was of possession of an identity card relating to another person, contrary to s. 7A(1A) of the Registration of Persons Ordinance, while the present appellant's offence was of possession of a forged identity card, contrary to s. 7A(1) of that Ordinance. But this distinction does not always make a difference. In R v. Lam Shui-leung [1987] HKLR 57 at pp 58-59 O'Connor J said:
"Before me, it was submitted on behalf of one of the appellants, that the maximum punishment being lower for possession of another person's identity card than for possession of a forged identity card, therefore, in otherwise similar circumstances, the sentence ought to be lower for the former offence than for the latter. The judge in R v. Wong Leung-kwong accepted that line of reasoning. I regret I cannot agree. It seems to me that it overlooks the fact that the two offences encompass different degrees of criminality, which must be provided for in the maximum punishment. It is perhaps an idle exercise, but I think in the upper band of seriousness of each of the offences, one would expect to find more serious criminal conduct in the forged cards cases than in the cases involving another person's card. A simple example is that there are more likely to be cases of a charge of possession of a large number of forged cards, than of use of a large number of cards of other person. One is more likely to have a large wholesaler of forged cards, than of cards of another persons. It is therefore appropriate that, providing for suitable punishment for the worst type of each case, the maximum provided for the forged cases ought to be higher than for cases relating to another person's card. It does not follow that where the circumstances of particular cases are identical, except for the nature of the card, the sentences should differ. For example, if police raided a premises and found two men who had illegally entered Hong Kong together, and together obtained employment here, one using for that purpose another person's card that he had bought in China, and the other using a forged card that he had bought in China, I do not consider it would be right to sentence them differently, though the maximum for the offence of the former is less than for that of the latter. Actually a case could be argued for a heavier sentence being imposed for use of another person's card than for possession of a forged one, as the latter is, what is referred to, incorrectly in my view, as a "victimless crime", whereas in the former the true owner is a victim."
10. Since O'Connor J's decision in R v. Lam Shui-leung, the legislation has been amended so that the maximum punishment for use or possession of a forged identity card and the maximum punishment for use or possession of an identity card relating to another are (as one sees from s. 7A(1) and s. 7A(1A) of the Registration of the Persons Ordinance) exactly the same, offenders being liable:
"(a) on conviction on indictment to a fine at level 6 and to imprisonment for 10 years; and
(b) on summary conviction to a fine at level 5 and to imprisonment for 2 years."
11. As to the last sentence of the passage which I have quoted from O'Connor J's judgment in R v. Lam Shui-leung, I would simply observe that where a forged identity card is used, everyone who deals with the offender on the strength of that forged identity card can be regarded as a victim of the offender's crime.
12. Where I certainly do agree with O'Connor J is that I share his view, expressed in the quoted passage, that: "It does not follow that where the circumstances of particular cases are identical, except for the nature of the card, the sentences should differ".
13. The second distinction between R v. Shamim Nawaz and the present case is that Mr Shamim Nawaz was an overstayer at the time of his offence while the present appellant was neither an illegal immigrant nor an overstayer at the time of his offence. He came here on a two-way permit, and was given permission to remain here until 12 October 1999. His offence was committed on 20 August 1999. This distinction brings us to the decision of Leong J (as he then was) in R v. Ghazanfar Iqbal, Magistracy Crim. App. No. 654 of 1993, 21 September 1993 and the decision of Hartmann J in HKSAR v. Chan Tsan Fai, Magistracy Crim. App. No. 312 of 1998, 1 May 1998.
14. Mr Ghazanfar Iqbal came to Hong Kong from overseas on a foreign passport with a Hong Kong visa. Mr Chan Tsan Fai came to Hong Kong from the Mainland on a two-way permit. Each was given permission to remain in Hong Kong for a limited period. Each found a lost identity card and kept it, thus committing the offence of possession of an identity card relating to another. Each committed that offence within the period of his permission to remain in Hong Kong. Thus neither of them was an illegal immigrant or an overstayer at the time of his offence.
15. Leong J reduced Mr Ghazanfar Iqbal's sentence from nine months' imprisonment to three months' imprisonment. Hartmann J said that Mr Chan Tsan Fai's sentence should have been one of three months' imprisonment rather than the sentence of 12 months' imprisonment passed on him in the Magistrate's Court. But since he had already served longer than that, Hartmann J substituted such sentence as resulted in his immediate release and repatriation to the Mainland.
16. It was accepted that Mr Ghazanfar Iqbal had not used the identity card for any purpose. And there was no suggestion that he intended to use it for any purpose. So his situation is obviously different from that of the present appellant.
17. As for Mr Chan Tsan Fai, Hartmann J said: -
"Although he admitted retaining this identity card to obtain employment, there was no evidence that he intended to remain in Hong Kong past the time when he was lawfully entitled to be here, whether in employment or otherwise."
18. Does this mean that there is no material difference between his situation and that of the present appellant? In my judgment, the Magistrate was right in taking the view that the present appellant's situation is materially different from that of Mr Chan Tsan Fai.
19. Mr Chan Tsan Fai, it will be remembered, happened to find somebody else's identity card while he was in Hong Kong. The present appellant, on the other hand, had acquired the forged identity card in the Mainland before coming to Hong Kong, paying RMB$6,000 for it. That gives the present case an element of planning absent in R v. Ghazanfar Iqbal and HKSAR v. Chan Tsan Fai.
20. But that element of planning was also present in the case of HKSAR v. Lam Kai Kwong, Magistracy Crim. App. No. 882 of 1998, 6 November 1998. Pang J's judgment in that case was not recorded, but I have been supplied with a brief note of what he said.
21. As to the facts of the case, the "Brief Facts of Case" admitted by Mr Lam Kai Kwong were these:
" At the material time, PW(1) & (2) stopped the Deft o/s 120 Lung Cheung Road, Tsz Wan Shan for an ID card check, and Exh (1) in deft's possession was found to be a forgery. Upon questioning, the Deft admitted buying the forged ID Card in Zhenshen at the price of $1,000-RMB. PW(1) then cautioned and arrested the Deft and seized Exh (1). Under caution, the Deft begged for a chance and stated the purpose of buying the card is to use it for employment. PW(1) then conducted a search on the Deft, and Exh (3) was found in his possession.
2. The Exh (1) was later delivered to PW(4) of Government Laboratory for examination. Upon delamination, an extraneous piece of white paper bearing the present image of the portrait was found inserted between the covering laminate and the body of the card. PW(4) is therefore of the opinion that the questioned Hong Kong Identity Card is forged.
3. The genuine ID card holder was later located and confirmed that he had lost his ID Card in Zhenshen on 07-MAY-98.
4. Police enquiry also revealed that the Deft had entered Hong Kong from Zhenshen on 28-JUN-98 with a two way permit, and was permitted to stay until 21-JUL-98.
5. After thorough investigation, the Deft was subsequently charged with the above offence."
22. Pang J reduced Mr Lam Kai Kwong's sentence from the 12 months' imprisonment imposed in the Magistrate's Court to a sentence of four months' imprisonment. Going by a brief note taken by someone present in his court, Pang J seems to have taken that course because there had been no actual use of the identity card in seeking employment.
23. That is also the position here. There is no evidence or admission that the present appellant had made actual use of the identity card in seeking employment. The statement by the Duty Lawyer to the Magistrate that the appellant "intended to use the forged identity card to look for a job in Hong Kong but was unable to do so" is ambiguous. Perhaps he had produced the identity card to prospective employer and still failed to get employment. Or perhaps he was not even able to find a single prospective employer to whom he could produce the identity card. We simply do not know.
24. There is, however, one sense in which there is evidence of use in the present case absent in HKSAR v. Lam Kai Kwong. In its original form the Brief Facts of Case in that case stated that the police officer who conducted the identity card check "was given [the identity card] which was found to be a forgery". But before those Brief Facts of Case were admitted by Mr Lam Kai Kwong, they were amended to state in neutral terms simply that the identity card "in [Mr Lam Kai Kwong's] possession was found to be a forgery". In the present case, the Brief Facts of Case admitted by the present appellant says in terms that he produced the forged identity card to the constable for inspection. By reason of that difference, the present appellant's conduct was more serious than Mr Lam Kai Kwong's conduct. But I do not feel able to say that it was so much more serious as to justify a sentence of one year's imprisonment. There is grave suspicion that the present appellant intended to remain in Hong Kong past the time when he was lawfully entitled to be here. But it cannot be read to be clear beyond reasonable doubt that such was his intention.
25. I propose to reduce the present appellant's sentence. But before I come to the extent of the reduction, I propose to gather together the principles and sentence levels which emerge from the past cases which I have dealt with above. Apart from serving to explain the reduction which I will make, such an exercise will, I believe, be of assistance to Magistrates in future cases of this kind. I do not take it upon myself to lay down guidelines in the way that the Court of Appeal does, but I trust that what I am about to say will nevertheless be helpful to Magistrates.
(1) Where the circumstances are otherwise the same, the sentence ought to be the same whether the identity card was forged (so that the use or possession thereof offended against s. 7A(1) of the Registration of Persons Ordinance) or related to another person (so that the use or possession thereof offended against s. 7A(1A) of that Ordinance).
(2) Where the offender's presence in Hong Kong was illegal at the time of his offence, whether because he was an illegal immigrant or because he was an overstayer, a sentence of about 15 months' imprisonment upon a plea of guilty would be appropriate if he had a forged or somebody else's identity card for the purpose of obtaining employment or otherwise furthering his remaining in Hong Kong.
(3) Where the offender's presence in Hong Kong was legal at the time of his offence, he being neither an illegal immigrant nor an overstayer, possession of somebody else's identity card which he found would merit a sentence of about three months' imprisonment upon a plea of guilty.
(4) Even if the offender's presence in Hong Kong was legal at the time of his offence, because he was neither an illegal immigrant nor an overstayer, the fact that he intended to use a forged or somebody else's identity card to seek employment would be an aggravating factor, and the appropriate sentence upon a plea of guilty would be about four months' imprisonment.
(5) If he had actually used a forged or somebody else's identity card in seeking employment, then a sentence of about a year's imprisonment would be appropriate even though his presence in Hong Kong was legal at the time of his offence because he was neither an illegal immigrant nor an overstayer.
(6) It is an element of aggravation if an offender, whether here legally or illegally, actually produced a forged or somebody else's identity card to a police officer conducting an identity card check. Such conduct ought to be reflected by about an extra two months' imprisonment. Another way of putting it would be that it is an element of mitigation if the offender refrained from producing the identity card to the officer conducting the check. That element of mitigation was present in HKSAR v. Lam Kai Kwong and explains a sentence of only four months' imprisonment for someone who armed himself with a bogus identity card before coming to Hong Kong.
(7) In R v. Ghazanfar Iqbal at p. 2, Leong J said:
"Another significant feature is that he had not come from and has no connection with places which are commonly known to be sources of illegal immigrants e.g. China or Vietnam. He is also not connected with Hong Kong."
This reflects the principle that where deterrent sentences are passed to combat prevalence, lesser sentences are of course to be passed where a material feature of that prevalence is absent.
26. In all the circumstances and on the principles and sentence levels set out above, I allow the appeal by reducing the appellant's term from one year's imprisonment to six months' imprisonment. Although I have halved the sentence passed by the Magistrate, I should acknowledge that her discussion of the past cases has helped me in dealing with this matter. Far from criticizing her, I would acknowledge her contribution towards my effort in bringing greater clarity and consistency to this area of sentencing.
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(V. Bokhary) |
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Judge of the Court of First Instance
High Court |
Representation:
Mr William Lam, SADPP of the Department of Justice, for the Respondent
Mr Philip Wong, instructed by the Legal Aid Department, for the Appellant
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