HKSAR v. SHER, ALI KHAN

HCMA 394/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 394 OF 2005

(ON APPEAL FROM ESCC 1584 OF 2005)

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Before: Deputy High Court Judge Carlson in Court

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J U D G M E N T

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1.  This is an appeal against sentences totalling 15 months imposed by Mr Ian Candy, Principal Magistrate at the Eastern Magistrates Court on 14 April this year.

2.  On 12 April 2005, the Appellant was working on the 7^th floor of a building at 118, Gloucester Road.  The police had received an anonymous tip that the Appellant was using another person’s identity card and attended those premises.  The Appellant was asked by the police officer who had gone to investigate to produce his identity card.  He produced one, the photograph of which plainly related to another person.  He was arrested on suspicion of being in possession of somebody else’s Hong Kong Identity Card.  A fingerprint check showed that this card had not been issued to the Appellant but to another man, who like him, was of Pakistani origin.

3.  The Appellant’s passport was obtained and this showed that he had been allowed to remain in Hong Kong until the 18 September 2002.  He had therefore overstayed his welcome by some 2½ years.  Accordingly, he was charged with “Being in possession of an Identity Card relating to another”; contrary to Section 7A(1A) of the Registration of Persons Ordinance, Cap. 177 and for “Breach of Condition of Stay” (by overstaying); contrary to Section 41 of the Immigration Ordinance, Cap. 115.  He pleaded guilty to both offences.

4.  The Appellant is a person of previous good character.  The learned Magistrate, in a very succinct Reasons for Sentence, has explained that on the first charge, he applied the recent guideline, re-stated and now made more clear by the Court of Appeal in HKSAR v Li Chong Li, Magistracy Appeal 925 of 2004, by adopting a starting point of 15 months’ imprisonment, which he reduced to 12 months for humanitarian reasons, because the Appellant had told him that his mother in Pakistan was suffering with her heart.  In respect of the second charge, this being a bad case of overstaying, he imposed a term of 3 months which he directed to be served consecutively.

5.  With regard to humanitarian reasons of this sort, it has to be realised that whilst the Court may have sympathy for the plight of a defendant’s family who may be far away (Pakistan in this case), persons who come here and break the law in this way cannot expect to have their sentences reduced, save for exceptional cases of hardship.  This is not one of those cases.  And in any event, the learned Magistrate has in this case already given a discount of 3 months in respect of the humanitarian reasons advanced to him by the Appellant.

6.  In my judgment, these sentences are faultless.  The Appellant had obtained another person’s card to obtain employment illegally, having overstayed for a very significant period of time.  This is an appeal without merit which must therefore stand dismissed.

Application to leave to appeal and for bail pending appeal by the appellant to Court of Final appeal. No reasonable prospect of obtaining leave to appeal and bail refered. Please refer to the appeal judgment of FAMC4/2006