HKSAR v. SHIH TIAN LIANG

bjbj HCMA16/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO. 16 OF 2008 (ON APPEAL FROM STCC 8758 OF 2007) ---------------------

BETWEEN HKSAR Respondent and SHIH TIAN LIANG ( e)YiQ) nvicted on his own plea of an offence of using a copy of a false instrument, contrary to section 74 of the Crimes Ordinance, Cap.

200. He was sentenced to four months imprisonment and now appeals that sentence.

AUTONUMOUT The facts of the case were that the appellant had been employed as a security guard at a residential block of flats in Quarry Bay since 1998. His date of birth was in November 1943 and the policy of his employer was that the age of security guards could not exceed 65 years.

AUTONUMOUT In about July 2007, in anticipation of the expiry of his then current employment contract, the appellant submitted an application for renewal of his contract for a period of 18 months. Together with that application he provided an altered copy of his Hong Kong identity card in which his stated date of birth had been changed to 1947. That date, if accepted as true, would have enabled him to renew his contract without infringing the age limit imposed by his employer of 65 years. His application was, however, unsuccessful and the matter was reported to police.

AUTONUMOUT McGowan for the appellant advances three grounds of appeal. He argues that : (1) the magistrate was wrong to conclude immediate imprisonment was the only appropriate option; (2) the magistrate did not give sufficient consideration to the appellant s clear record, age or his other personal particulars and the particulars of the offence; and (3) the appellant s sentence was wrong in principle and manifestly excessive. The three grounds can be dealt with together.

AUTONUMOUT The magistrate said in his reasons for sentencing the appellant In sentencing, I took on board the fact that this offence was likely to be detected at an early stage since the defendant s particulars would have already been on the employer s file. Nonetheless, this represented a deliberate and dishonest attempt on the defendant s part to obtain a pecuniary advantage by deception, and I considered this merited a custodial sentence as a starting point. I took a starting point of 6 months imprisonment which I reduced to 4 months to reflect the defendant s plea. I did not consider there were grounds to suspend it.

AUTONUMOUT It was not in dispute that the appellant had worked for something in the vicinity of 40 years in Hong Kong and had an unblemished character. Nor was it disputed that the appellant s motivation was simply to be able to work for, effectively, an extra six months so as to supplement his MPF payment of about $300 per month and so be less of a burden on his family.

AUTONUMOUT In the circumstances of the case the falsification of a copy of his identity card was not the worst sort of offence envisaged by section 74, though any presentation of a deliberately falsified document to an employer for the purpose of gaining more favourable employment terms may well be considered serious, and it is true that in such cases offenders will run the risk of an immediate custodial sentence : see HKSAR v. Poon Lap Fung, HCMA413/1998 and HKSAR v. Wong Shing Kong, HCMA317/2002.

AUTONUMOUT But in the present case I do not think sufficient weight was given to the prior good character and unblemished work history of the appellant nor the relatively limited scope of the offence. While it is true that even long-term good character pales into insignificance in respect of more serious crimes; see Attorney General v. So Chin Chiu [1994] 1 HKLR 106, for offences such as the present where, if any custodial sentence is imposed, it will be a matter of months rather than years, then a defendant s previous good character may well be a factor which allows a court to consider an non-custodial sentence as being appropriate.

AUTONUMOUT In my view this case was of such a kind and required consideration as to whether a non-custodial sentencing option was suitable.

AUTONUMOUT It seems to me that, while I agree with the magistrate that a suspended sentence may not fully reflect the criminality involved in the offence and as importantly would not necessarily provide a sufficient deterrence in respect of this sort of activity, the imposition of a community service order would be appropriate to the circumstances of the case and would protect the interests of the community and in particular that of employers regarding this sort of conduct.

AUTONUMOUT Accordingly, the appellant having being found suitable for the imposition of a community service order and the terms and effect of the order having been explained to the appellant, I order that the appellant perform 150 hours community service pursuant to section 4(1) of the Community Service Orders Ordinance, Cap. 378. (M.A. McMahon) Judge of the Court of First Instance, High Court Mr Raymond Cheng, SGC of the Department of Justice, for HKSAR Mr James H.M. McGowan, instructed by Messrs Chong, Fu & Co., for the Appellant

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