R. v. NGUYEN THI THAM

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 747 OF 1996

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J U D G M E N T

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1. The appellant pleaded guilty to possession of a forged Vietnamese Refugee Card, to breach of a Deportation Order, and to remaining in Hong Kong without the authority of the Director of Immigration.

2. Her history was that in December 1993, she was convicted of possession of a forged Vietnamese Refugee Card and escaped from legal custody. She was deported from Hong Kong for life on 7th September 1994. On 17th August 1995, she was again convicted of possession of a forged Vietnamese Refugee Card and breach of a Deportation Order. She was sentenced to a suspended sentence and was deported to Vietnam for life on 4th January 1996. On 23rd May, just over 5 months after her previous deportation, she was arrested and brought before the court in respect of the counts which are now appealed before me.

3. The facts are that the police on the day in question stopped a woman in a staircase in Tang Fung Street, Tin Wan. She took them to her home and showed them her identity card. While in the premises, the officers noted a number of persons inside a room who appeared to be anxious and avoiding the officers. They sought to check the proof of identity of the persons in that room and the appellant herein produced a forged Vietnamese Refugee Card. As a result, she was taken before the court and the appellant pleaded guilty to the charges which she faced. It is urged upon me that the learned Magistrate was wrong in adopting the decision of R. v. So Man King [1989] 1 HKLR 142 in arriving at his sentence in respect of this matter.

4. In respect of the first count of possession of a forged Vietnamese Refugee Card, I take into account the case of R. v. Nguyen Duc Quang, Mag. App. No.885 of 1993. In that case, the learned Chief Justice, as he then was, suggested that for an offence of possession of an unlawfully obtained Vietnamese Refugee Card, a starting point after trial should be one of 15 months. I with respect adopt that approach but would add this - in a situation where the offender is a multiple re-offender, the starting point after trial should be one of 18 months' imprisonment.

5. The learned Magistrate has seen fit to impose a sentence in respect of this count of 3 months' imprisonment. He clearly did so, so as to tailor the total sentence he passed. It is on the face of the Notice of Appeal that a sentence may be increased or reduced pursuant to s.119(e) of the Magistrates' Ordinance. That circumstance is clearly in the mind of the appellant.

6. In my view, the proper approach to sentencing is to impose an appropriate sentence in respect of each count before the magistrate and then overlap the sentences if the totality applicable to the seriousness of the offences is less than the consecutive value of all the sentences. It is in my view wrong to reduce sentences to fit them within a totality. In this case, the sentence of 3 months' imprisonment is clearly manifestly inadequate. Taking into account the words of the learned Chief Justice that I have referred to in R. v. Nguyen Duc Quang, I take, as an appropriate starting point for this offence after trial, one of 18 months' imprisonment. Given the circumstances of the appellant in this case, a proper sentence upon the plea would be one of 3 months' imprisonment. The appeal against sentence in respect of the first count is allowed. The sentence is set aside and one of 13 months' imprisonment is imposed in lieu thereof.

7. The second matter before the Magistrate was breach of Deportation Order. I can find no fault with the sentence he passed in respect of that offence.

8. The third is remaining in Hong Kong without the authority of the Director of Immigration. The main thrust of counsel's appeal is that the learned Magistrate should not have adopted So Man King in respect of this offence. I am referred, by the respondent to this appeal, to the words of my brother Patrick Chan, J. in the case of R. v. Tran Quoc Toan, Mag. App. No.60 of 1996. In that case he considered that there should be little difference between an illegal immigrant coming from Vietnam and one coming from China. He conceded that there may be perhaps some slight difference, but not a great amount.

9. The case of So Man King was aimed to cure a particular problem. At the time it was decided there was an ever-increasing influx of illegal immigrants from the Mainland. The question I must answer is whether or not it should apply also to the influx of illegal immigrants from Vietnam. It is clear that before these courts, there are a regular number of Vietnamese illegal immigrants who are second-time or third-time returnees to Hong Kong. In my view, the problems facing this territory from Vietnamese illegal immigrants is so akin to that we have faced from Chinese illegal immigrants, that the principles enunciated in So Man King hold good for Vietnamese illegal immigrants. However, having said that I would agree with Mr Justice Chan that there should be some slight difference given that the magnitude of the problem is less in these days than that which we faced from Mainland China in the days of So Man King. That being so, I would take a proper penalty after plea on the count of remaining in Hong Kong without the authority of the Director of Immigration to be one of 15 months' imprisonment. In respect of the third charge, the appeal is allowed, the sentence of 6 months is set aside and one of 15 months is imposed in lieu thereof.

10. It is the usual practice in these courts, when sentences are passed in respect of the offences then before the Magistrate, to impose sentences in the vicinity of those that I have now imposed and to make them concurrent. I would make each of the three sentences in respect of counts one, two and three on the charge sheet concurrent.

11. That remains the question of the activation of the suspended sentence passed upon the appellant and for which she was deported in January 1996. She is a multiple re-offender. It is entirely appropriate that the suspended sentence should be activated. In my view, taking into account the totality principle and bearing in mind that she has persistently returned to this territory in defiance of the convictions, the penalties and the deportations imposed upon her, that the sentence of 10 months' imprisonment should be consecutive to the sentences that she is serving for the three counts in respect of this appeal.

12. To the extent that I have outlined above, the appeal against conviction is allowed, sentences set aside and the sentences that I have imposed in lieu of those which I set aside.