Hon Yeung VP (giving the Reasons for Judgment of the Court):
高等法院上訴法庭副庭長楊振權頒發上訴法庭判案理由書：

Introduction
引言

The appellant (Chung Ka Wai) and two other defendants (Ng and Tam) faced a charge sheet containing a total of 10 charges. Charges 1 to 9 are all either obtaining or attempting to obtain property by deception (Deception Charges).
上訴人（鍾嘉威）和另外兩名被告人（吳、譚）面對共有10項控罪的控罪書。第一項至第九項控罪都是以欺騙或企圖以欺騙手段取得財產罪（詐騙罪）。

The charges against the appellant, apart from the Deception Charges 2 and 5 to 8, also included charge 10, namely, possession of an identity card relating to another person without lawful authority or reasonable excuse, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap 177 (“s.7A(1A)”).
針對上訴人的控罪，除了第二項和第五項至第八項的詐騙罪外，亦包括第十項無合法權限或合理辯解而管有他人的身份證罪，違反香港法例第177章《人事登記條例》第7A(1A)條（“第7A(1A)條”）。

The appellant pleaded not guilty to all charges and was tried before Deputy District Judge Marco Li (trial judge).
上訴人否認全部控罪，並在區域法院暫委法官李國威（原審法官）席前受審。

On 8 October 2015, the trial judge, who was not sure that the appellant had knowledge of the online auction scam constituting the subject matter of his Deception Charges, acquitted the appellant of all his Deception Charges by giving him the benefit of the doubt. However, the trial judge convicted the appellant on charge 10, possession of an identity card relating to another person without lawful authority or reasonable excuse, and sentenced him to a Rehabilitation Centre.
2015年10月8日，原審法官因為不能確信上訴人對構成詐騙罪的網上拍賣騙案知情，故基於疑點利益歸於被告人的原則，裁定針對上訴人的詐騙罪罪名全部不成立。但原審法官裁定針對上訴人的第十項無合法權限或合理辯解而管有他人的身份證罪則罪名成立，並判他入更生中心。

The appellant sought leave to appeal against the conviction and sentence and his application was granted by a single Justice of Appeal. He now appeals against the conviction and/or sentence. After the hearing, this Court dismissed the appellant’s appeal against conviction and sentence and upheld the original decision. This Court’s reasons for judgment are set out below.
上訴人不服定罪及判刑，經上訴法庭單一法官批准後，現就定罪及/或判刑上訴。經聆訊後，本庭駁回上訴人針對定罪和判刑的上訴，維持原判。以下是本庭的判案理由。

The Facts
案情

The facts related to charge 10 were undisputed and they were presented to the court as admitted facts, which are as follows:
和第十項控罪有關的案情是沒有爭議，並且是以承認事實向法庭呈述的。該承認事實如下：

Around 3:30 p.m. on 29 June 2014, Lau Chun Ho (transliteration) discovered his Hong Kong Identity Card and property kept in a locker at Silverstrand Beach, Tseung Kwan O, had been stolen, and thus reported it to the police on the same day.
2014年6月29日下午約3時30分，劉振豪在將軍澳銀線灣儲物櫃發現屬於他的香港身份證和財物被盜，並於當日報警。

On 26 September 2014, a detective police officer found upon search the identity card belonging to [Lau Chun Ho] in the first drawer from the left of a desk in [the appellant’s] room at his residence. Upon arrest and caution, [the appellant] said, “I picked it up on the street”.
2014年9月26日，探員在（上訴人）住所房間內一張書桌的左邊第一格抽屜搜出屬於（劉振豪）的身份證。在被捕和警誡下，（上訴人）說：“我喺街度執嘅”。

DPC13345 stressed when he was giving evidence that the identity card in question (“the identity card”) was in the appellant’s passbook in the drawer, the same way as shown in photos 8 and 9 of the photo album listed as prosecution exhibit 5. The defence position was that the identity card was simply in the drawer, but not in the appellant’s passbook.
偵緝警員13345作供時強調涉案身份證（“身份證”）如控方證物第5部相簿冊中第8、9張照片所顯示，是放置於抽屜內上訴人的銀行存摺內。辯方當時的立場是身份證只是放在抽屜內，而非放在上訴人的銀行存摺內。

Information shows that when a police officer was making a post-record of the appellant’s cautioned statement, the appellant said he picked up the identity card on 24 September 2014 on Lai Chi Kok Road, Sham Shui Po. The appellant further alleged that he intended to “hand” it “over to the police station”, but “it was kept there for the time being because (he was) leaving home in a hurry”. When the officer went on to ask him why he did not give such an explanation during the house search, the appellant responded by saying “(I) forgot because (I) was nervous”. The appellant also said he could not remember the time he picked up the identity card on 24 September 2014, but alleged that the identity card was picked up from the ground of Sham Shui Po Sports Ground.
有資料顯示，警員在補錄上訴人在警誡下的說法時，上訴人表示他是在2014年9月24日在深水埗荔枝角道拾到身份證。上訴人聲稱打算將身份證“交還警處”，但因為“趕時間出門口，所以放咗喺到先”。警員再問上訴人為何在搜屋時沒有作出該解釋，上訴人的回應是“因為緊張，所以忘記咗”。上訴人亦表示不記得在2014年9月24日拾到身份證的時間，但他指身份證是在深水埗運動場地下拾到的。

In his subsequent video-recorded interview with the police, the appellant reiterated that the identity card was picked up on Lai Chi Kok Road near Sham Shui Po Sports Ground on 24 September 2014. He said he put the identity card in his room the same day, but could not remember the exact time. He also alleged that no one was nearby when he picked up the identity card and that no one knew he put the identity card in his room.
其後，警員和上訴人有進一步的錄影會面。上訴人重申身份證是在2014年9月24日在荔枝角道近深水埗運動場附近拾到的。上訴人指他是在同日將身份證放在房間，但確實時間他則記不到。上訴人聲稱他拾起身份證時，附近沒有人，亦沒有其他人知道他將身份證放在房間。

When asked by the officer where he was in the afternoon of 29 June 2014 (i.e. when the identity card was stolen) and if he would go to Silverstrand Beach, Tseung Kwan O, the appellant said he could not remember. The appellant maintained that he had never used the identity card for other purposes, nor had he given the particulars of the identity card or shown the identity card to anyone. That said, the above post-record and the video-recorded interview did not form part of the admitted facts.
警員有問過上訴人於2014年6月29日下午（即身份證被盜時）身處甚麼地方及他是否會去將軍澳銀線灣泳灘。上訴人都表示不記得。上訴人力稱他沒有使用過身份證作其他用途，亦沒有將身份證的資料交給他人或讓他人看過身份證。但上述補錄和錄影會面內容並非是同意案情的一部份。

11.In his evidence, LAU Chun Ho confirmed that the identity card, which had been stolen from him, had not been misused or used illegally by others.
劉振豪作供時，確認其被盜的身份證沒有被人不當或非法使用過。

The Appellant’s Position
上訴人的立場

12.The appellant did not give evidence, nor did he call any witness to give evidence. His position was that he admitted possession of an identity card which related to another person, but the explanation given by him under caution had constituted a “reasonable excuse” for so doing. As a result, he should be acquitted of charge 10 that he faced.
上訴人沒有作供，亦沒有傳召證人作供。他的立場是他承認管有他人的身份證，但他在警誡下作出的解釋，已構成管有他人的身份證的“合理辯解”，故針對他的第十項控罪不成立。

The Reasons for Verdict of the Trial Judge
原審法官的裁決理由

13.Regarding “lawful authority or reasonable excuse” as a defence, the trial judge agreed that the prosecution had the legal burden to prove that the appellant’s possession of an identity card relating to another person was without lawful authority or reasonable excuse, failing which the court could not find the appellant guilty of the charge. However, the trial judge had made it clear that the appellant had the evidential burden to raise the defence that he had lawful authority or reasonable excuse. The trial judge did not agree that the appellant had sufficiently discharged his evidential burden by saying under caution that he had picked up the identity card on the street, nor did he agree that the prosecution’s evidence was not sufficient to successfully rebut his allegation. The trial judge ruled that the prosecution’s evidence was sufficient to prove that the appellant did have in his possession such identity card without lawful authority or reasonable excuse. As a result, the trial judge found the appellant guilty of charge 10.
就“合法權限或合理辯解”這答辯理由，原審法官同意控方有舉證責任，要證明上訴人是在沒有合法權限或合理辯解而管有他人身份證，否則法庭不能裁定上訴人罪名成立。但原審法官表明上訴人有證據/提證責任，提出他有合法權限或合理辯解這免責理由。原審法官不同意上訴人在警誡下說過他是在街上拾取到身份證一事便足以履行其證據/提證責任，而控方的證據不足以成功反駁他的說法。原審法官裁定控方的證據足以證明上訴人是沒有合法權限或合理辯解而管有身份證，因此，原審法官裁定上訴人第十項控罪罪名成立。

14. The trial judge underlined the following:
原審法官強調：

“In the first place, given the fact that (the appellant) elected not to give evidence, the weight which could be given to the exculpatory statement under caution almost amounts to nought. More importantly, even if (the appellant) really did pick up the identity card on the street inadvertently, he should not have had it in his possession for as long as two odd months, nor was he allowed to do so. As a result, I do not agree that (the appellant) has adduced sufficient credible evidence to raise the issue of lawful authority or reasonable excuse. I repeat that I have absolute respect for the (appellant’s) legal right to remain silent. However, in respect of a charge involving the evidential burden, the court needs to look for relevant evidence. Since (the appellant) has failed to adduce concrete evidence, the court rules that the prosecution has succeeded in proving charge (10).”
“首先（上訴人）選擇不作供，其警誡下的開脫性陳述可給予的比重近乎零。更重要的是，即使（上訴人）真的是在街上不經意地拾到該身份證，也不應亦不能管有它長達兩個多月之久。故此，本席並不同意（上訴人）在本案已提出足夠可信納的證據，對合法權限或合理辯解提出爭議。本席重申，絕對尊重（上訴人）保持緘默的法律權利；然而，當控罪涉及證據責任時，法庭便需要尋找相關的證據。既然（上訴人）未能提出實則證據，法庭裁定控方就控罪[10]已成功舉證。”

15.The trial judge did not deal with what was said and given in explanation by the appellant in the post-record and the video-recorded interview in detail, in particular his allegation that he only picked up the identity card on 24th September 2014, for the obvious reason that such a claim lacked supporting evidence at all. The appellant did not give evidence, and the explanation that he gave was not part of the prosecution’s evidence. The trial judge seemed to be convinced that the appellant had had in his possession the identity card for as long as two months, hence rejecting the claim that the appellant only picked up the identity card on 24th September 2014.
原審法官沒有詳細處理上訴人在補錄及錄影會面時說過的話及作出過的解釋，特別是他指是在2014年9月24日才拾到身份證的說法，原因明顯是該說法完全沒有證據支持。上訴人沒有作供，而他作出過的解釋亦非控方證據的一部分。原審法官看似認定上訴人管有身份證長達兩個月，故不接納據稱上訴人是在2014年9月24日才拾到身份證的說法。

Grounds of Appeal
上訴理由

16.Mr Jackson Poon, counsel for the appellant, submitted that the trial judge was wrong in thinking that the appellant had had in his possession the identity card for as long as two odd months, the reason being the absence of evidence in this regard. Mr Poon emphasized that according to the appellant, he picked up the identity card in the area of Shum Shui Po on 24th September 2014.
代表上訴人的潘展平大律師指原審法官錯誤認為上訴人管有身份證長達2個多月，原因是沒有這方面的證據。潘大律師強調根據上訴人的說法，他是在2014年9月24日在深水埗區拾獲身份證的。

17.Mr Poon pressed the point that the prosecution had no evidence to rebut the claim that the appellant only picked up the identity card two days prior to the incident, and that he intended to hand the identity card to the police. Mr Poon stressed that the identity card had not been abused. In his view, the appellant did have reasonable excuse for possession of an identity card which related to another person.
潘大律師力稱控方沒有證據反駁上訴人是在案發前兩天才拾獲身份證，而他是打算將身份證交給警方的說法。潘大律師強調身份證沒有被濫用過。他認為上訴人就管有他人身份證一事有合理辯解。

Further Submission
進一步陳述

18.At the invitation of the court, both parties addressed the court further on the issue of burden of proof concerning “without lawful authority or reasonable excuse” as that was specified in the offence.
在法庭的邀請下，雙方就罪行所指“無合法權限或合理辯解”的舉證責任這議題向法庭作出進一步陳述。

19.Mr Poon’s position was that the relevant charge contains two elements of offence, namely (i) possession of an identity card relating to another person; and (ii) without lawful authority or reasonable excuse. Mr Poon’s position was that the prosecution has the legal burden to prove the two elements of offence in order for the court to find the appellant guilty. Mr Poon relied on such cases as Lam Yuk Fai v. HKSAR [2006] 2 HKLRD 165 and Tong Yiu Wah v. HKSAR [2007] 3 HKLRD 565 in support of his argument.
潘大律師的立場是有關控罪包括兩項控罪原素，即(一) 管有他人身份證；及(二) 無合法權限或合理辯解。潘大律師的立場是控方有舉證責任證明該兩項控罪元素，法庭才能裁定上訴人有罪。潘大律師援引林育輝對香港特別行政區 [2006] 2 HKLRD 165。湯耀華對香港特別行政區 [2007] 3 HKLRD 565等案支持其立場。

20.Mr Poon also submitted that the appellant does not have any legal burden or evidential burden to raise an issue on “without lawful authority or reasonable excuse”. It was Mr Poon’s position that the trial judge was wrong in ruling that the appellant had the evidential burden to raise that he had reasonable excuse.
潘大律師亦指就“無合法權限或合理辯解”這議題，上訴人沒有舉證責任(legal burden)，亦沒有證據/提證責任(evidential burden)就該議題提出爭議。潘大律師的立場是原審法官指上訴人有證據/提證責任(evidential burden)去提出他有合理辯解的裁決是錯誤的。

The Respondent’s Position
答辯人的立場

Ms Vinci Lam, Senior Assistant Director of Public Prosecutions, contended on behalf of the respondent that “without lawful authority or reasonable excuse” is not an element of the charge in this case.  She pointed out that the appellant not only has the evidential burden to raise the defence of reasonable excuse, but also has the legal burden to adduce sufficient and credible evidence to support that contention, as well as to bring out reasonable doubt in the prosecution’s allegation before he can successfully be acquitted.
代表答辯人的高級助理刑事檢控專員林穎茜力稱在本案，“無合法權限或合理辯解”並非控罪的元素。她指上訴人不但有證據/提證責任(evidential burden)提出有合理辯解這答辯理由，更有舉證責任(legal burden)提出充份和可信的證據支持該論點，及對控方的指控帶出合理疑點，才能成功脫罪。

Ms Lam set out in detail the record of the legislative proceedings for s.7A(1A) as follows:
林專員詳細列出第7A(1A)條的以下立法記錄：

“Sir, I move that the Registration of Persons (Amendment) Bill 1989 be read a Second time.
“主席先生，我謹動議二讀1989年人事登記（修訂）條例草案。

The purpose of the Bill is to deter the deliberate misuse of identity cards. The two main proposed amendments to the Registration of Persons Ordinance are: first, to make it an offence for a person to have in his custody or possession, without lawful authority or reasonable excuse, an identity card relating to another person; and second, to make clear the offence of unlawful transfer of an identity card to another person.
本條例草案的目的，是防止一切人士故意濫用身份證。建議對人事登記條例作出的兩項主要修訂包括：第一，規定任何人士如無合法授權或合理的理由而保管或藏有他人的身份證，即屬違法；第二，清楚規定任何人士如把身份證非法轉讓他人，也屬違法。

Under existing legislation, the possession, without lawful authority or reasonable excuse, of an identity card relating to another person, is not an offence.  Using it, however, is an offence under the Registration of Persons Regulations. A loophole in the existing legislation therefore exists where no prosecution can be instituted against persons who are found with identity cards belonging to others in their possession, and there is no evidence of their having used those cards. This is clearly undesirable and it is therefore proposed in clause 4(b) of the Bill to make possession also an offence. The opportunity is also taken to impose heavy penalties as a deterrent against such activities.
根據現行法例，沒有合法授權或合理理由而藏有他人的身份證，不屬違法。不過，根據人事登記規例，使用他人的身份證則屬違法。因此，現行法例有一個漏洞，就是在發現有人藏有他人的身份證時，如沒有證據證明該人曾使用該身份證，便無法提出起訴。這種情況顯屬不妥，因此，本條例草案第4(b)條建議，藏有他人的身份證，亦屬違法。當局亦藉此機會訂出嚴竣罰則，以收阻嚇作用。

The amendments in this Bill are necessary because an identity card is no longer merely a proof of identity. It can also be used as a travel document into and out of Hong Kong. This is an incentive for racketeers to relentlessly steal and transfer identity cards belonging to others for deliberate misuse by impersonators or illegal immigrants. It is hoped that this new legislation and the heavy penalties proposed — a fine of $20,000 and imprisonment for two years on summary conviction, or a fine of $50,000 and imprisonment for 10 years on conviction on indictment — will act both as an effective deterrent and as a means of prosecuting those who abuse our identity card system.”
本條例草案中的各項修訂均屬必需，因為身份證已不僅是身份的證明，亦是可用作進出香港的旅遊證件。因此，不法之徒遂千方百計盜取他人的身份證，以便轉讓給假冒他人身份的人或非法入境者，讓他們可在明知故犯的情況下使用別人的身份證。當局希望新的法例和法例中所建議的嚴峻罰則 ― 經簡易程序審訊定罪者，可被判罰款2萬元和入獄兩年；經公訴程序治罪者，可被判罰款5萬元和入獄10年 ― 可起有效的阻嚇作用，並可讓當局得以檢控那些濫用我們的身份證制度的人。”

Ms Lam’s position was that “possession of an identity card relating to another person” and “using an identity card relating to another person” are both inherently culpable acts, whereas the defences of “lawful authority and reasonable excuse” etc. are not elements of the offence, but rather exceptions.  Ms Lam emphasized that in order to rely on those defences, the defendant not only has to have the evidential burden to raise that defence, but also has the legal burden to adduce convincing evidence before that defence can be established.
林專員的立場是“管有他人身份證”和“使用他人身份證”都是固有可責罰的行為，而“合法權限和合理辯解”等答辯理由並非控罪的元素，而是例外的部份。林專員強調如要依賴該等答辯理由，被告人不但有證據/提證責任(evidential burden)去提出該答辯理由，亦有舉證責任(legal burden)提出令人信服的證據，才能確立該答辯理由。

24．Ms Lam emphasized that what was dealt with in Lam Yuk Fai was s.42(2) of the Immigration Ordinance, which distinguishes between (i) forging or altering without lawful authority (a document) and (ii) transferring (a document) to another without reasonable excuse.  Ms Lam pointed out that the former is already an offence in its own right whereas the latter constitutes an offence only with the inclusion of “without reasonable excuse”. Ms Lam was of the view that it was due to the above reason that the Court of Final Appeal held that when dealing with the offence of transferring a travel document to another without reasonable excuse, the prosecution has the legal burden to prove that the defendant does not have reasonable excuse before the court can convict the defendant.
林專員強調林育輝案所處理的是《入境條例》第42(2)條，而該條例將(i) 偽造或沒有合法授權而改動（證件）和(ii) 沒有合理辯解而向另一人轉讓（證件）身份俱分。林專員指出前者本身已是罪行，而後者要包括“沒有合理辯解”才構成罪行。林專員認為是因為上述原因，終審法院裁定處理沒有合理辯解向另一人轉讓旅行證件罪行時，控方有舉證責任證明被告人沒有合理辯解，法庭才能裁定被告人罪名成立。

25.Ms Lam emphasized that s.7A(1) and (1A) of the Registration of Persons Ordinance concern the use or the possession of a forged identity card, and the use or the possession of an identity card relating to another person respectively, and that the structures of the two provisions are identical, i.e. the presence of the same introductory phrase of “Any person who without lawful authority or reasonable excuse” before “uses or has in his possession a forged identity card” and “uses or has in his possession an identity card which relates to another person”. Ms Lam asserted that s.7A(1) prohibits the use and the possession of a forged identity card, which are extremely serious and inherently culpable offences.  If a defendant uses lawful authority or reasonable excuse to justify his use and possession of a forged identity card, he has the evidential burden to raise that defence and the legal burden to prove that defence. Likewise, if a defendant uses lawful authority or reasonable excuse to justify his use or possession of an identity card relating to another person, he also has the burdens of both raising and proving that defence.
林專員強調《人事登記條例》第7A(1)及(1A)條分別涉及使用或管有偽造身份證及使用或管有他人身份證，而兩條條例結構相同，即在使用或管有偽造身份證及使用或管有他人身份證前都有“任何人無合法權限或合理辯解”這相同引言。林專員力稱第7A(1)條是禁止使用及管有偽造身份證，而使用及管有偽造身份證是極為嚴重及固有可責罰的責行。如被告人要以合法權限或合理辯解來將使用及管有偽造身份證的行為合法化，被告人有證據/提證責任提出該答辯理由，亦有舉證責任去證明該答辯理由。同樣地，如被告人要以合法權限或合理辯解來將使用或管有他人身份證的行為合理化，被告人亦有責任提出及證明該答辯理由。

26.Ms Lam reiterated that pursuant to s.7A(1A), using an identity card relating to another person concerns an inherently culpable act.  Thus, if lawful authority or reasonable excuse is to be used as the defence for that offence, the defendant has the burdens of both raising and proving that pleaded defence. Ms Lam pointed out that s.7A(1A) covers both using an identity card relating to another person and being in possession/custody of an identity card relating to another person, and that it is relatively obvious that the using of an identity card relating to another person involves the intention to commit illegal activities.  Thus, it must be an inherently culpable act.
林專員重申根據第7A(1A)條，使用他人身份證涉及固有可責罰的行為，故如要以合法權限或合理辯解作為該罪行的免責理由，被告人有責任提出及證明該免責理由。林專員指出第7A(1A)條涵蓋使用他人身份證及管有/保管他人身份證，而使用他人身份證涉及干犯非法活動的意圖較為明顯，因此，必然是固有可責罰的行為。

27.Ms Lam was of the view that same as using an identity card relating to another person, in dealing with the charge of being in possession/custody of an identity card relating to another person, if a defendant uses lawful authority or reasonable excuse as his defence, he also has the burdens of both raising and proving that pleaded defence; otherwise, in dealing with offences under the same provision, the court has to adopt different burdens of proof, which is not a reasonable approach.
林專員認為和使用他人身份證相同，處理管有/保管他人身份證的控罪時，如被告人要以合法權限或合理辯解作為免責理由時，被告人亦有責任提出及證明該免責理由，否則在處理同一條罪行時，法庭須要採納不同的舉證責任，而該處理方法並非合理。

28.Ms Lam also emphasized that identity card is an extremely important proof of a person’s identity.  Every adult has the duty to duly keep his own identity card safely and should not have in his possession an identity card relating to another person or more than one identity card.  Thus, it is reasonable to legally require a person having in his possession an identity card relating to another person to bear the evidential burden and even the legal burden to prove that he has the defence of lawful authority or reasonable excuse before he can be exonerated.
林專員亦強調身份證是極為重要的個人身份證明。每名成年人都有責任妥善保管其個人身份證，亦不應管有他人或多於一張的身份證。因此，法例要求一名管有他人身份證的人，有證據/提證甚至舉證責任證明他有合法權限或合理辯解的辯護理由才能脫罪是合理的。

Discussion
討論

29.We are of the view that in considering the proper interpretation of a particular ordinance, we have to take a reasonable approach in accordance with the wording used in and the mischief to be tackled by that ordinance.  Approaches adopted in dealing with different ordinances in other cases may not necessarily be applicable.
本庭認為考慮個別條例的恰當詮釋時，必須根據該條例的用詞，就其針對的不當行為以合理的方法處理。其他案件處理不同條例的處理方法不一定適用。

30.S.7A(1) and (1A) of the Registration of Persons Ordinance provide as follows:
《人事登記條例》第7A(1)及(1A)條列明：

“(1)Any person who without lawful authority or reasonable excuse uses or has in his custody or possession a forged identity card or other document issued under this Ordinance commits an offence and is liable—
“(1)任何人無合法權限或合理辯解，而使用或保管或管有偽造身分證或根據本條例發出的其他文件的偽造本，即屬犯罪 —

(a)on conviction on indictment to a fine at level 6 and to imprisonment for 10 years; and
(a)循公訴程序定罪後，可處第6級罰款及監禁10年；及

(b)on summary conviction to a fine at level 5 and to imprisonment for 2 years.
(b)循簡易程序定罪後，可處第5級罰款及監禁2年。

(1A)Any person who without lawful authority or reasonable excuse uses or has in his custody or possession an identity card or other document issued under this Ordinance which relates to another person commits an offence and is liable—
(1A)任何人無合法權限或合理辯解，而使用或保管或管有他人身分證或根據本條例發出而屬於他人的其他文件，即屬犯罪 —

(a)on conviction on indictment to a fine at level 6 and to imprisonment for 10 years; and
(a)循公訴程序定罪後，可處第6級罰款及監禁10年；及

(b)on summary conviction to a fine at level 5 and to imprisonment for 2 years.”
(b)循簡易程序定罪後，可處第5級罰款及監禁2年。”

31.In general, using an identity card relating to another person is of the same nature as altering without lawful authority or forging a travel document.  Offence like using an identity card relating to another person or altering a travel document etc., which is obviously a serious and unusual act, amounts to an inherently culpable offence.  A defendant accused of using an identity card relating to another person or altering a travel document has to prove that he has the defence of “lawful authority or reasonable excuse” if he is to be absolved, a matter to which Mr Poon did not oppose.
一般而言，使用他人身份證和偽造或無合法權限改動旅行證件的性質相同。使用他人身份證或改動旅行證件等罪行，明顯是嚴重及不尋常的行為，屬固有可責罰的罪行。如被指控使用他人身份證或改動旅行證件的被告人要免除罪責，他必須證明他有“合法權限或合理辯解”的免責條款。對此，潘大律師不表異議。

32.Upon the amendment of s.7A(1A), “using an identity card relating to another person” and “possession of an identity card relating to another person” appear under the same provision as offences of the same category with both “lawful authority” and “reasonable excuse” being the defences to those two types of offences under the same provision, so it would be unusual to regard the burden of proof of the two as different.  Ms Lam’s argument is a strong and cogent one.
當經修訂後的第7A(1A)條將“使用他人身份證”和“管有他人身份證”視為同類罪行在同一條例內出現，而“合法權限”和“合理辯解”在同一條例都是該兩類罪行的免責理由時，視兩者的舉證責任不同是不尋常的。林專員的論據是強而有力的。

33.However, where the same ordinance deals with two types of contravention of different nature, with one involving inherently culpable conduct and the other one not, it would not be unreasonable for the court to adopt a different approach when considering the burden of proof for the defence of “lawful authority” and “reasonable excuse”.  This court cannot ignore the fact that possession of an identity card relating to another person was not an offence originally.  It was not until the amendment in 1989 that it was made an offence like using an identity card belonging to another person.  Possession of an identity card relating to another person and using an identity card relating to another person are different in nature; also, the gravity of the two offences are not the same.
但當同一條例處理兩類性質不同的違法行為，一類涉及固有可責罰的行為，另一類則不是，法庭考慮“合法權限”和“合理辯解”這免責條款的舉證責任時，採納不同的處理方法亦並非是不合理的。本庭不能忽視管有他人身份證原並非是罪行，是在1989年經修訂後，才和使用他人身份證一樣成為罪行。管有他人身份證和使用他人身份證性質不同，嚴重性亦有分別。

34.This court should point out that in daily life, it happens quite often that people have in their possession/custody an identity card relating to another person, which may not necessarily involve inherently culpable conduct.  For example, parents may have in their possession their children’s identity cards for safety reasons; spouses may, for some reasons, have in their possession the identity card of one another; the same is true for family members too.  In some commercial transactions, staff members may also need to keep the customers’ identity cards for a short while.  Under the above circumstances, if those parents, spouses, family and staff members must discharge their legal burden by establishing the defence of “lawful authority” or “reasonable excuse” before they can absolve themselves from liability, it will bring huge trouble to these people who are in possession of an identity card relating to another person.  Yet, this court also needs to point out that, under the above circumstances, there shall not be any difficulty for those charged with possession of an identity card relating to another person to raise the defence of “reasonable excuse”.
本庭應指出，在日常生活中管有/保管他人身份證是常會發生，不一定涉及任何固有可責罰的行為。例如家長為安全理由會替子女管有身份證；配偶可能為某種原因替對方管有身份證，家人亦如是。在某些商業交易，工作人員亦可能要短暫替客戶管有身份證。在上述情況下，要管有他人身份證的父母、配偶、家人或工作人員必須履行舉證責任證明“合法權限”或“合理辯解”這答辯理由才能免除罪責，對該些管有他人身份證的人士會造成極大困擾。但本庭亦應指出，在上述情況下，被指控管有他人身份證的人士要提出“合理辯解”這免責理由亦是輕而易舉的。

35.In HKSAR v Lam Yuk Fai (2006) 9 HKCFAR 281, the Court of Final Appeal dealt with a case involving s.42(2)(a)(ii) of the Immigration Ordinance, namely the transfer of a travel document to another without reasonable excuse, and transfer includes “take or convey from one place or person or situation or time of occurrence to another, and it can mean transmit, transport or hand over from one to another”.  The Court of Final Appeal ruled that there are two elements to the offence: the first involving the transfer of a travel document and the second being the requirement that the transfer should be without reasonable excuse.  The Court of Final Appeal ruled that for charges of conspiracy to transfer a travel document to another person without reasonable excuse, the burden is on the prosecution to negative the reasonable excuse of the defendant while the defendant does not have the duty to prove anything.
在HKSAR v Lam Yuk Fai (2006) 9 HKCFAR 281案，終審法院處理的案件涉及《入境條例》第42(2)(a)(ii)條，即沒有合理辯解而向另一人轉讓旅行證件罪，而轉讓是包括“從一個地方、一個人、一個情況或一個發生時間帶到或傳送到另一個地方、另一個人、另一個情況或另一個發生時間，亦可解作由一人轉交、運送或移交至另一人”。終審法院裁定該罪行的要素有兩項：第一，轉讓旅行證件；及第二，須在沒有合理辯解下作出該轉讓。終審法院裁定當控方檢控被告人串謀在沒有合理辯解下向另一人轉讓旅行證件時，控方是有否定被告人有合理辯解的舉證責任，而被告人是沒有任何舉證責任。

36.The Court of Final Appeal emphasized that transferring (including transporting) a travel document is different in nature from possession of a weapon in a public place.  The policy of the legislator is that it is an offence to possess a weapon in a public place; however, transferring a travel document by itself is not an inherently culpable act unless the transfer is for some other unlawful purposes such as to facilitate the use of that travel document for an unlawful or dishonest purpose by others.  Therefore, the prosecution needs to prove that an accused transferred a travel document without reasonable excuse before a conviction can be made.  The Court of Final Appeal referred to Tse Mui Chun v HKSAR (2003) 6 HKCFAR 601 and compared it with R v Matthews [2003] EWCA Crim 813 so as to highlight the point that there could only be a prosecution if there was the evidence that the transfer was taking place to assist in the passport being used for an unlawful or dishonest purpose by others.
終審法院強調轉讓包括運送旅行證件的性質和在公眾地方管有兇器不同。立法者的政策是在公眾地方管有兇器是違法行為，但轉讓旅行證件本身並非是固有可責罰的行為，除非轉讓是有其他非法目的，例如是為了協助他人使用該旅行證件作非法或不誠實用途。因此，控方要證明被控人無合理辯解轉讓旅行證件，法庭才能將他定罪。終審法院援引Tse Mui Chun v HKSAR (2003) 6 HKCFAR 601並對比R v Matthews [2003] EWCA Crim 813案以強調除非有證據證明轉讓護照之舉是為了協助他人使用護照作非法或不誠實用途，否則控方根本無法提出檢控。

37.This court believes that possession of an identity card relating to another person is more serious than transporting a passport belonging to another person.  Even if there is no evidence from the prosecution to prove that an accused possessed someone else’s identity card so as to use it for an unlawful or dishonest purpose, a prosecution can still be undertaken.  However, the prosecution has the duty to prove that the accused is without legal authority or reasonable excuse. Otherwise the accused must not be convicted.
本庭認為管有他人身份證，較運送他人護照為嚴重，即使控方沒有證據證明管有他人身份證之舉是為了使用身份證作非法或不誠實用途，控方仍可作出檢控，但控方有責任證明被控人沒有合法權限或合理辯解，否則法庭不應判被控人有罪。

38.The fact that the burden of proof lies upon the prosecution does not mean such a burden is to be discharged blindly with no basis.  Before this burden is triggered, the accused must first raise that defence as well as his version in support thereof. Otherwise, the prosecution will have no way of discharging its burden.  The court cannot expect the prosecution to conduct cases like a blind man feeling around for clues.
控方具舉證責任，不表示該舉證責任是要在全無基礎及盲目地履行。要引發該舉證責任，被控者必先要提出該免責理由及支持該免責理由的說法，否則控方無從履行其舉證責任。法庭不可能冀望控方要以瞎子摸象的方法處理事件。

39.In the case of Lam Yuk Fai, Lord Woolf NPJ stated in paragraph 32 of the judgment:
在Lam Yuk Fai案，終審法院非常任法官Lord Woolf在判案書第32段表明：

“Many, if not most offences, that create an offence and then provide that there will be no offence if the defendant has a reasonable excuse for his offending conduct no doubt place at least an evidential burden on the defendant to raise the defence if not a persuasive or legal burden (see for example Tse Mui Chun v. HKSAR (2003) 6 HKCFAR 601).”
“很多（即使並非大多數）罪行先訂立一項罪行，然後訂明，被告人如對其違法行為有合理辯解，便不屬犯罪。對於有意提出如此抗辯的被告人，這些條文即使沒有施加說服性的舉證責任或法律舉證責任，也無疑是至少施加證據/提證責任（參閱例如Tse Mui Chun v. HKSAR (2003) 6 HKCFAR 601）。”

40.The above views were agreed to by the Court of Final Appeal in the case of Tong Yiu Wah v HKSAR (2007) 10 HKCFAR 324.
上述主張獲終審法院在湯耀華對香港特別行政區 (2007) 10 HKCFAR 324案認同。

41.It is highly unusual for someone to have in his possession an identity card relating to another person.  The trial judge was of the opinion that the appellant had the evidential burden to raise the issue of “reasonable excuse” and adduce sufficient credible evidence in support of such, whereas the prosecution needed to discharge its burden of proof by adducing evidence in rebuttal, so as to prove that the appellant possessed Lau Chun Ho’s identity card without lawful authority or reasonable excuse, and only then could the court convict him.  The trial judge’s decision is both correct and reasonable.
管有他人身份證是極不尋常的行為。原審法官認為上訴人有證據/提證責任(evidential burden)提出“合理辯解”這議題及足夠可信納的證據(sufficient credible evidence)來支持該議題，而控方需要提出反駁(rebuttal)以履行其舉證責任，證明上訴人沒有合法權限或合理辯解而管有劉振豪的身份證時，法庭才能將上訴人定罪。原審法官的裁決是正確和合理的。

42.The undisputed fact is that the appellant had Lau Chun Ho’s identity card in his possession.  Therefore, the only issue of this case is whether the appellant had any lawful authority or reasonable excuse to possess Lau’s identity card.  In dealing with the above issue, the appellant has the evidential burden to raise the defence of reasonable excuse and the prosecution has the persuasive or legal burden to rebut the “reasonable excuse” defence raised by the appellant before it can convince the court to convict the appellant.
上訴人管有劉振豪的身份證是不爭的事實。因此，案件唯一的爭議是上訴人是否有合法權限或有合理辯解管有劉振豪的身份證。在處理上述議題時，上訴人有證據/提證責任提出合理辯解的免責理由，控方則有說服性或法律舉證責任推翻上訴人提出的“合理辯解”的答辯理由，才能說服法庭將上訴人定罪。

43.How should the prosecution prove that the appellant possessed Lau Chun Ho’s identity card without lawful authority or reasonable excuse?  This court believes that in order to discharge such a burden of proof, the prosecution must prove that the appellant’s version given in support of lawful authority or reasonable excuse is not true.
控方如何證明上訴人是沒有合法權限或合理辯解管有劉振豪的身份證？本庭認為要履行該舉證責任，控方須證明上訴人提出以支持合法權限或合理辯解的說法並非真確。

44.Since the appellant was a stranger to Lau Chun Ho, it is therefore not possible that he would have lawful authority to possess Lau’s identity card.  In this case, the only thing that can lend support to the appellant’s reasonable excuse for possessing Lau’s identity card was his own version of the matter, namely that he picked up the identity card and he intended to hand it over to the police station.
上訴人不認識劉振豪，故不可能有合法權限管有他的身份證。案中唯一能支持上訴人有合理辯解管有劉振豪的身份證是上訴人的說法，即他是拾到身份證，並打算將身份證交到警署。

45. We agree that if the appellant’s account is true or may be true, there will be doubt in respect of the charge against him, then he should be given the benefit of the doubt and acquitted.
本庭同意如上訴人的說法是真的或可能是真的，針對上訴人的控罪有疑點，而法庭亦須給予他疑點得益，並判他罪名不成立。

46.Mr Poon contended that when rejecting the appellant’s account, the trial judge only considered the appellant’s statement at the time of the arrest that the identity card was picked up on the street, and did not consider his further explanations in the post-record and the video-recorded interview.
潘大律師力稱原審法官否定上訴人的說法時，只考慮上訴人被捕時說身份證是在街拾到，而沒有考慮他在補錄和錄影會面時進一步的解釋。

47.However, we should point out that the appellant neither gave evidence nor called any witness. Hence, the defence did not adduce any evidence during the trial to support the appellant’s account in the video-recorded interview that the identity card was picked up on 24 September 2014. The trial judge based his verdict on the admitted facts between the prosecution and the defence, and according to the admitted facts, the appellant’s response to the incident was “I picked it up on the street” only without including his further explanations made in the post-record and the video-recorded interview. This explains why the trial judge did not deal with the further explanations given by the appellant.
但本庭應指出，上訴人沒有作供亦沒有傳召證人作供。因此，原審時，辯方是沒有提出任何證據支持上訴人在錄影會面時的說法，指身份證是在2014年9月24日才拾到。原審法官的裁決是建基在控辯雙方的承認事實，而根據該些承認事實上訴人對事件的回應只是“我喺街度執嘅”，而沒有包括上訴人在補錄和錄影會面時作出的進一步解釋。這亦解釋了為何原審法官沒有處理上訴人作出的進一步解釋。

48.We cannot ignore the fact that the appellant was found in possession of the identity card almost 3 months from the time it was stolen. There was no evidence to support the appellant’s account that he picked up the identity card only 2 days before the arrest. It was reasonable that the trial judge did not give any weight to this account. It was also not incorrect for the trial judge to say that the appellant should not have possessed the identity card for as long as 2 months odd.
本庭不能忽視，上訴人管有身份證距離該身份證被盜的時段近三個月。上訴人指是在被拘捕前兩天才拾到身份證的說法沒有證據支持。原審法官不給予該說法任何比重亦是合理的。原審法官指上訴人不應管有身份證長達兩個多月的說法亦非不正確。

49.It was not probable for Lau Chun Ho to abandon his identity card, and the appellant must have known that it was not probable for the holder of an identity card to abandon his identity card. Furthermore, the identity card was found from a drawer in the appellant’s room during a search by a police officer, and it was even put inside the appellant’s passbook. This fact did not conform to the appellant’s claim that he intended to hand over the identity card to the police station. If the appellant had really intended to hand it over to the police station, he should have immediately offered that explanation when it was found upon search.
劉振豪不可能放棄其身份證，而上訴人亦必會知悉身份證持有人不可能放棄身份證。再者，該身份證是由警員在上訴人房間的抽屜內搜出，而該身份證更是放在上訴人的銀行存摺內。該事實和上訴人聲稱打算將該身份證交到警署的說法不符。如上訴人確實打算將該身份證交到警署，他亦應會在身份證被搜出時，立刻作出該解釋。

50.As the Court of Appeal said in HKSAR v Li Chang Li [2005] 1 HKLRD 864:
誠如上訴法庭在香港特別行政區訴李長利 [2005] 1 HKLRD 864案指出：

“Generally speaking, a document of identity cannot possibly be a plaything or collector’s item.”
“一般情況，身份證明文件，不可能是玩物，亦不具收藏價值。”

51.According to the laws of Hong Kong, the holder of an identity card has a duty to carry with him his identity card and produce it for inspection upon request by a police officer or an officer of the Immigration Department. He also has a duty to report the loss, destruction, damage or defacement of his identity card to the authority and apply for a replacement within 14 days. It is an unusual act to possess an identity card relating to another person.
根據香港法例，身份證持有人有責任隨身攜帶身份證，並在警務人員及入境事務處人員的要求下出示其身份證，以供查閱，亦有責任在身份證遺失、毀滅、損壞或污損後14天內向有關當局報告及申請補領。管有他人身份證是不尋常的行為。

52.In our view, the appellant concealed the identity card relating to another person in the passbook in the drawer inside his room, which indicated that he intended to possess it for a long period of time and use it when necessary.
本庭認為上訴人將他人身份證收藏在自己房間的抽屜的銀行存摺內，顯示他是打算長期管有身份證及在有需要時，使用身份證。

53.In the light of the background of this case, we are of the view that the prosecution’s evidence was sufficient to prove that the appellant was in possession of Lau Chun Ho’s identity card without lawful authority or reasonable excuse. The decision of the trial judge to find the appellant guilty of the charge of possessing an identity card relating to another person without lawful authority or reasonable excuse was correct and safe. Accordingly, we dismiss the appellant’s appeal against conviction.
以本案的背景而言，本庭認為控方的證據足以證明上訴人是沒有合法權限或合理辯解管有劉振豪的身份證。原審法官裁定上訴人無合法權限或合理辯解而管有他人身份證控罪罪名成立的決定是正確及穩妥的。因此，本庭駁回上訴人就定罪的上訴。

Sentence
判刑

54.The possession of an identity card relating to another person is surely not a minor offence because the purpose of the person possessing it is very likely to be illegal. Using it to commit a crime not only will enhance the difficulty of solving the case, but it may also cause inconvenience to its genuine holder.
管有他人身份證絕非輕微罪行，原因是管有他人身份證的人的目的極可能是非法的。利用他人身份證犯罪，不但會增加破案的困難度，亦可能對真正身份證持有人造成不便。

55.If there is evidence to show that a defendant possesses an identity card relating to another person for the purpose of committing other offences, a sentence of immediate imprisonment should be imposed for the charge of possessing an identity card relating to another person.
如有證據證明被告人管有他人身份證，目的是干犯其他罪行，則管有他人身份證罪理應判處即時監禁刑罰。

56.In this case, there was no evidence to show that the appellant possessed Lau Chun Ho’s identity card for the purpose of committing other particular offences, but the possession of an identity card relating to another person is itself a serious offence.
本案沒有證據證明上訴人管有劉振豪的身份證的目的是犯某些其他罪行，但管有他人身份證本身亦是嚴重的罪行。

57.At the time of the offence, the appellant was under 18 years of age and had a clear record. He was not married but had a girlfriend who bore him a son. He also shared the responsibility of raising the son. However, according to the probation officer report and the community service order report obtained by us, the appellant’s background and living habits reveal that he is going astray. If not timely corrected, he is very likely to go down the criminal path where there is no turning back.
案發時，上訴人不足18歲，亦沒有任何刑事記錄。上訴人仍未結婚，但已有女朋友，並和她育有一名兒子。上訴人有負責撫養該名兒子。但根據本庭取得的感化官報告和社會服務令報告，上訴人的背景及生活習慣顯示他正步向歪途。如不合時糾正，上訴人極可能會走上犯罪的不歸路。

58.In view of the background of the case and that of the appellant, the sentence of a rehabilitation centre order imposed by the trial judge was well-founded and appropriate, and we should not alter it. Accordingly, we dismiss the appellant’s appeal against sentence.
以案件的背景及申請人的背景而言，原審法官作出的更生中心命令的判刑是有基礎及恰當的，本庭不應更改。因此，本庭亦駁回上訴人就判刑的上訴。

Jackson Poon, instructed by Messrs Keith Lam Lau & Chan, assigned by the Director of Legal Aid, for the appellant
上訴人：由法律援助署委派劉林陳律師行轉聘大律師潘展平代表。

Vinci Lam, Senior Assistant Director of Public Prosecutions, and Noelle Chit, Public Prosecutor, of the Department of Justice (on 25 October 2017) and Vinci Lam, Senior Assistant Director of Public Prosecutions of the Department of Justice (on 6 November 2017), for the respondent
答辯人：由律政司高級助理刑事檢控專員林穎茜及檢控官戚雅琳代表。（2017年10月25日）由律政司高級助理刑事檢控專員林穎茜代表。（2017年11月6日）