HKSAR v. PRAKASH THAPA

HCMA 939/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 939 OF 2009

(ON APPEAL FROM TMCC 2858/2009)

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BETWEEN

HKSAR Respondent
and
PRAKASH THAPA Appellant

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Before: Hon Mackintosh J in Court

Date of Hearing: 6 January 2010

Date of Judgment: 6 January 2010

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J U D G M E N T

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1. The appellant pleaded guilty in the magistracy to possession of an identity card relating to another person (section 7A(1A) of the Registration of Persons Ordinance, Cap. 177) and unlawfully remaining in Hong Kong (section 38(1)(b) of the Immigration Ordinance, Cap. 115). He was sentenced to 15 months’ imprisonment, concurrent on each charge and he appeals against those sentences.

2. The appellant was intercepted by a police officer on 29 July 2009 who asked for his identity card. He produced a Hong Kong identitycard relating to another man, Gurung Amchandra. It was a genuine smart identity card, but the holder had obtained a replacement cardand the one which was seized from the appellant had already been invalidated.

3. Checks by the police revealed that it was an invalid card and the appellant was questioned. He thereupon admitted that he was anillegal immigrant, having entered Hong Kong unlawfully in July 2004 and having thereafter remained without the authority of the Directorof Immigration for five years.

4. The appellant’s mitigation, advanced to the magistrate by the duty lawyer on his behalf, was that he fled to Hong Kong to escaperecruitment into the armed forces in Nepal, and left behind his wife and son.

5. Today he says that he wants to return to Nepal, that he wants to reunite with his family, particularly with his wife and the youngchild, and particularly in the circumstances that he has been told that his elder sister has died and that his parents are very elderly.

6. I should mention that although in the intervening five years, until the appellant’s interception by the police, he had not madeany claim for refugee status, the magistrate adjourned his case for three months to give him an opportunity to apply for asylum andto make a claim, if he wished to do so, that he was fleeing from the risk of torture. However, the appellant made no such claim andinformed the magistrate through the duty lawyer that he had no present intention of doing so.

7. In my judgment, the sentences imposed by the magistrate are wholly in accordance with the established sentencing tariffs for offencesby a person of clear record for possessing an identity card relating to another and producing that card to a police officer to extendan unlawfully stay (that authority is Li Chang Li [2005] 1 HKLRD 864); and for unlawfully remaining (a case called R v So Man King [1989] 1 HKLR 142).

8. There is, in my judgment, no ground to complain about the terms imposed; and, given, firstly, that the appellant had unlawfullyremained in Hong Kong for five years, he was fortunate that the term was not increased from the usual 15 months to reflect that;and secondly, given that he sought to prolong his unlawfully stay by the production of the card, he could not have complained ifthe magistrate had ordered the two sentences of imprisonment to run partially consecutively.

9. Although he mentions his family matters today, those matters cannot have any impact on the proper sentence to be imposed upon him.I am satisfied that there is no merit in this appeal and it must be dismissed.

(Colin Mackintosh)
Judge of the Court of First Instance
High Court

Mr Robert Lee, Senior Public Prosecutor of the Department of Justice, for the Respondent

Appellant, appears in person