HKSAR v. MUHAMMAD NASARULLAH

HCMA 531/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 531 OF 2002

(ON APPEAL FROM KCCC 6252/2002)

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J U D G M E N T

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1. The Appellant, a 23 year old male of Pakistani origin, appeals a sentence of 12 months imprisonment for possession of an identity card relating to another person and a sentence of 1 month imprisonment for breach of condition of stay, to be served concurrently, imposed upon him in the Magistracy consequent upon his pleas of guilty. An application for review of the sentences was refused.

2. This is an unfortunate matter in that the Appellant was charged with, pleaded guilty to and convicted of possession of the identity card "without lawful authority or reasonable excuse" yet the prosecution accepts and the Magistrate apparently sentenced on the basis that the identity card, along with other items, had been entrusted to him overnight by its true holder. Plainly, therefore, he had "reasonable excuse" for possession of the identity card and should not have been convicted on those particulars.

3. However, sec. 7A(1A) of the Registration of Persons Ordinance, Cap. 177, under which the Appellant was convicted, creates other offences, amongst them that of using an identity card without lawful authority or reasonable excuse. It was the production of the identity card to a patrolling police officer which gave rise to this offence. There was no lawful authority or reasonable excuse in that use of it by the Appellant. The Appellant was charged and convicted under the correct section but with the incorrect offence. Amendment of the charge, even at this stage, cannot cause any prejudice to the Appellant in the circumstances of this matter. The Magistrate would have had the power under sec. 27 of the Magistrates Ordinance, Cap. 227, to have made that amendment had she a mind to do so. I have power under sec. 119(1)(d) of that Ordinance to do so.

4. The Magistrate imposed a sentence of 12 months imprisonment on a plea of guilty. This connotes a starting point after trial of 18 months imprisonment. She indicated that she had regard to the decision in HKSAR v CHAN Man Mo, HCMA1059/1999. She found that the identity card was "in the Appellant's possession...clearly for the purpose of employment and for furtherance of his stay in Hong Kong."

5. The agreed facts, which the Magistrate repeated in full in her Statement of Findings, establish that the owner of the identity card had handed his possessions to the Appellant for safekeeping and had yet to retrieve them from him. When asked for identification by the police officer, the Appellant produced the identity card because he knew he had overstayed. There was thus no justification for the Magistrate's finding that the card was possessed or used for the purpose of employment in Hong Kong.

6. In a technical sense the card was used to further his stay in an attempt to conceal the fact that he was an overstayer: it appears, on the facts agreed by the Appellant upon which the Magistrate was to sentence, to have been a spur-of-the-moment decision by the Appellant. Moreover it is an admitted fact that he simply handed the card to the police officer yet remained silent when asked if it was his card: there was no further representation by him.

7. The result is that in this matter there is a factual situation different yet again from the various situations set out in CHAN Man Mo. On the facts of this matter a starting point of 18 months imprisonment after trial is, in my judgement, manifestly excessive. The appropriate starting point is 12 months imprisonment from which the Appellant is entitled to the discount for his plea.

8. Although the Appellant's mother does seem to have medical problems there is nothing before me to show that they are such as to constitute strong humanitarian grounds entitling the Appellant to a further reduction. The fact of the Appellant's mother's ill health was made known to the Magistrate when she sentenced.

9. There is no justification for criticising the Magistrate's sentence on the second charge or the consequent order.

10. In the circumstances,

(1) the charge is amended by deleting the words "Possession of" and substituting therefor the word "Using";

(2) the particulars of offence are amended by deleting the words "have in your possession" and substituting therefor the word "use".

The appeal against the sentence on Charge 1 is allowed to the extent that the period of imprisonment is reduced to 8 months.