R. v. Shamim Nawaz

M.A. No. 804 of 1993

HEADNOTE

S.7(1A) Registration of Persons Ordinance, Cap. 177: possession of another's identity card. Correct sentence when in combination with an immigration offence. Whether offender an illegal immigrant or overstayer irrelevant. Issue is whether the 2 offences are connected. If no connection, 3 months' imprisonment appropriate.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 804 OF 1993

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DECISION

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1. The Appellant was charged with two offences. First, possession of an identity card relating to another person, contrary to Section 7A(1A) of the Registration of Persons Ordinance, Cap.177. Second, remaining in Hong Kong after his permission to stay had expired, contrary to Section 41 of the Immigration Ordinance, Cap. 115. To each offence, the Appellant pleaded guilty. He was sentenced to periods of 15 months' and 2 months' imprisonment respectively, the sentences to run concurrently. He appealed against the sentence of 15 months' imprisonment. At the conclusion of the hearing, I allowed the appeal, set aside the sentence and substituted a sentence of 3 months' imprisonment. I said that I would give my reasons later and that I now do.

2. On 9th September 1993, the Appellant was asked for proof of his identity by police officers. He took out an identity card which was discovered to have been reported lost or destroyed. The Appellant was arrested and under caution admitted that he had picked up the identity card on 7th September 1993. He had come to Hong Kong on 24th September 1992 and had been permitted to remain in Hong Kong for 3 months until 24th December 1992.

3. In passing the sentence which she did, the magistrate said that she followed the tariff set down by the Court of Appeal in R. v. Chan Shau Kin Cr. App. No. 934 of 1981, an unreported decision of the Court of Appeal given on 4th January 1982. In that case, sentences of 15 months' imprisonment imposed upon illegal immigrants in possession of forged identity cards were upheld. Giving the judgment of the Court, Sir. Alan Huggins V.-P. said:

"... The learned magistrate gave very careful consideration to these cases, and has set out his reasons in full. He points out that the number of persons found in possession of forged identity cards has arisen from a trickle to a flood, and it is apparent that to him the deterrent factor was an important factor. He has emphasized the strain put upon the economy of Hong Kong by the influx of illegal immigrants. That is relevant because illegal immigrants require an identity card before they can obtain employment. They cannot obtain identity cards lawfully and therefore must resort to forgery.

We see no reason at all to differ from the opinion of the learned magistrate. The deterrent effect of a sentence of imprisonment in such a case must be of importance. It is not merely the unlawful entry into Hong Kong which is to be punished: that may eventually be dealt with by repatriation: what is being punished is the resorting to forgery. That is a further and serious offence and the law-abiding members of this community must be protected against illegal immigrants who resort to forgery."

4. Mr. Tang for the Appellant said that the learned magistrate erred in following that case, because the Appellant was not an illegal immigrant from China and the identity card in question was not a forgery. He argued that in this and subsequent cases the courts have endeavoured to impose an overall tariff for illegal immigrants from China who have both illegally entered Hong Kong and used a forged or another person's identity card. He said that a distinction has been drawn between an illegal immigrant, particularly one from China, and an offender who has simply overstayed his permission to remain in Hong Kong for a prescribed period. Thus, in R. v. Chong Yuk Lun (Mag. App. No. 129 of 1990), in his judgment delivered on 19th February 1990, Ryan J. in dealing with an overstayer said:

" The Magistrate was wrong to place the appellant into the illegal immigrant category. Persons who enter Hong Kong legally and then overstay do not thereby become illegal immigrants and must not be regarded as such."

5. In R. v. Shazad Ahmed (Mag. App. No. 845 of 1993), Patrick Chan J. in his judgment dated 16th November 1993 was dealing with a Pakistani national who had overstayed in Hong Kong and said:

"... The learned magistrate took the view that a nine months sentence was appropriate after a guilty plea to this type of offence for a non-Chinese illegal immigrant. He further said that since the appellant had maintained a plea of not guilty, he had forfeited the credit of a guilty plea. He therefore imposed a total sentence of 12 months' imprisonment.

With respect to the learned magistrate, I do not think he was in any way wrong in ordering such sentences which cannot be regarded in any way as manifestly excessive."

6. It should be noted that, in that case, the appellant had shown the offending identity card in order to obtain employment.

7. 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.

8. I think a clear indication of this approach was given by the Court of Appeal in A.G. v. Lam Ping Chun (1989) 1 HKLR 161. The Court of Appeal was concerned with an offence of using an identity card of another person and a sentence of 15 months' imprisonment suspended for 3 years. Upon the review of that sentence on the application of the Attorney General, Sir Derek Cons V.-P. giving the judgment of the Court said at p.162:

" In R. v. Lau Chung-kwan [1987] HKLR 203, which this Court decided as long ago as November 1986, it was suggested that 15 months would be an appropriate sentence for offences contrary to regulation 12. Only a few days ago, in R. v. So Man- king Mag. App. No. 408 of 1988 [See [1989] 1 HKLR 142], having been referred to the principal authorities dealing with offences against regulation 12 and with the related offences of using a forged identity card and of landing or remaining unlawfully in Hong Kong, all of which can be conveniently taken together as "immigration offences", we noted that the substantial element in sentences passed for all three offences was the defendant's unlawful presence in Hong Kong, which in itself, in normal circumstances, merited a sentence of 15 months' imprisonment; the actual use of a forged or other person's identity card to obtain some further or particular benefit could be considered an aggravating feature. We reiterate yet once again, that sentencing for these offences is intended to have a deterrent effect.

It is of course possible to envisage, as was accepted in Lau Chung-kwan, cases where the use of a forged or another person's identity card is in no way related to unlawful presence in Hong Kong. Those cases naturally are very different and will need to be treated differently. The present case however clearly does not fall within that category."

9. For the Crown, Mr. Lee argued, although not very strenuously, that the magistrate had indeed found a link between the two offences. I disagree. The magistrate was plainly concerned about the Appellant's explanation because she adjourned the case for enquiries to be made about the identity card. At the adjourned hearing, she was informed that it had been lost in April 1993. In her Reasons for Sentence, the magistrate said:

"Although the Appellant claimed to have picked up the identity card two days before, he only produced the identity card after he was stopped by the police and proof of identity was requested. It is therefore clear that the Defendant had no intention of handing the card in as lost property."

10. I am unable, as Mr. Lee urged me to do, to draw the inference that the magistrate impliedly found that the Appellant had the identity card in his possession in order to further his remaining in Hong Kong. It seems plain to me that the magistrate was simply reassuring herself that there was no real mitigation to the effect that the Appellant might have been proposing to hand in the identity card to the appropriate authority.

11. How the necessary link is to be established will depend upon the facts and circumstances of each individual case. In some, it will no doubt be futile to try and pursue the matter. In others, the facts and circumstances may be so overwhelming and compelling that the only inference to be drawn is that the offender had the identity card in his possession to further his purpose in remaining in Hong Kong. In others, it may be necessary, where the offender has pleaded guilty, for the magistrate to conduct a Newton hearing. In the present case, the latter may have been the appropriate course for the magistrate to have adopted. Given that the Appellant was in possession of an identity card which had belonged to another Pakistani national and which had been reported lost some five months previously, it would not have been surprising if the magistrate had disbelieved the Appellant's explanation, even after being offered on oath, and determined that it was not a case of what might be termed "simple possession".

12. In the present case, no link was established by the magistrate. Accordingly, the offence fell to be dealt with as being unconnected with the immigration offence. In Mag. App. No. 654 of 1993, R. v. Ghazanfar Iqbal, Leong J. reduced a sentence of 9 months' imprisonment to one of 3 months. The offender in that case was a Pakistani national who during the currency of his permission to stay in Hong Kong was found in possession of an identity card belonging to another. I think that is the appropriate sentence for an offence of this nature. Accordingly, I allowed the appeal in the terms which I did.

13. In similar cases in future, subject to totality, it may not be inappropriate for the sentences to be ordered to run consecutively.