HKSAR v. YAN FEI PING

HCMA2/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 2/2006

(ON APPEAL FROM TMCC 3795 OF 2005)

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BETWEEN

  HKSAR Respondent
  and  
  YAN FEI-PING (顏飛平) Appellant

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Before: Deputy High Court Judge Line in Court

Date of Hearing: 24 February 2006

Date of Judgment: 24 February 2006

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J U D G M E N T

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1. This is an appeal against a sentence of 15 months’ imprisonment imposed following a plea of guilty to an offence of the possessionof a forged Hong Kong identity card. The matter came to light because police officers were conducting identity checks at an apartmentblock that contained apartments used by single prostitutes. The Appellant was found there. He was asked for proof of identity andhe proffered a forged Hong Kong identity card. The whole card was forged; it was not a case of photo substitution and the alteringof a legitimate card.

2. The magistrate, in sentencing him to 15 months’ imprisonment, referred to two well known cases, namely R v Shameen Nawaz which was Magistracy Appeal 804/1993, and the more recent Court of Appeal case of Li Chang Lee which is Magistracy Appeal No. 935/2004, decided by the Full Court of Appeal. What those cases effectively decide is that 15 monthson a plea of guilty is the right sentence if there is a link between the offender’s status and the forged identity card.

3. The Appellant was an overstayer. He had arrived in Hong Kong on 15 June 2005, entitled to stay for seven days. He possessed theforged identity card and displayed it to the police officer on 3 December 2005. On the face of it, the production of the card toa police officer in such circumstances obviously does show a link between the possession of the forged card and the status of beingan overstayer, because the purpose of the possession of the card was to pass himself off as something he was not and so continuean unlawful stay in Hong Kong.

4. It does not necessarily follow the court will accept any explanation advanced by an Appellant. Today the Appellant advances in frontof me a reason that his duty lawyer did not put forward, which was that the reason he took the forged card out at the time was becausehe was not sober; that the reason he had the card, which bears an image of his face of great likeness, was that he just happenedto find it on a road in Yuen Long, and that the only reason he overstayed in Hong Kong was because he liked the place and wantedto stay here enjoying it, as a tourist.

5. I am afraid those reasons only have to be stated to be seen to be threadbare and incredible. It is thus that 15 months was the rightsentence and this appeal against sentence is dismissed.

6. Let me just add this. There was a concurrent sentence of 28 days for overstaying. The notice of appeal does put that in issue but,understandably, it was the subject of no complaint and I confirm that sentence as well.

  (P Line)
Deputy High Court Judge

Ms Catherine Ko, Senior Government Counsel of the Department of Justice, for the Respondent

Appellant: Yan Fei-ping (顏飛平), in person