HKSAR v. DO Thi Hay

HCMA 411/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 411 OF 2005

(ON APPEAL FROM TMCC 831/2005)

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J U D G M E N T

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1.  This is an appeal against sentences totalling 15 months imprisonment imposed by Mr Colin Mackintosh at the Tuen Mun Magistrates’ Court on 18 March 2005.

2.  The facts, which are uncomplicated, are these.

3.  The Defendant is a 30 year old woman from Vietnam.

4.  In the afternoon of the 16 March this year, she was stopped by two police officers in a playground at Tsuen Wan.  They thought that she was acting suspiciously and that she might be in Hong Kong illegally.  They asked her to produce her identity card and she presented the officers with an identity card that had her picture but which bore the name of another person, not her own.  A check by police radio showed that the card was not a genuine one.  She was further searched her and Vietnamese passport, which was in order, showed that she had entered lawfully on 22 September 2003 but that she had been given permission to stay here for only 14 days.  She had therefore overstayed her welcome by some 17 months.  A further search revealed that she was in possession of a Construction Industry Trading Authority Card bearing the same name Chan Thu Hung which appeared on her false identity card, and which would have facilitated her ability to obtain employment on building sites.  Those facts disclosed 3 offences to which she pleaded guilty.

5.  Firstly, possession of the forged identity card contrary to section 7A(1) of the Registration of Persons Ordinance for which she was sentenced to 15 months imprisonment.  Secondly, possessing a false instrument contrary to section 75 (2) of the Crimes Ordinance, for which she received 2 months and lastly, Breach of Condition of Stay (by overstaying) contrary to section 41 of the Immigration Ordinance for which a further 2 months imprisonment was imposed.  These sentences were ordered to run concurrently.  She now appeals against these terms of imprisonment complaining that they are, in all the circumstances, too long.

6.  It’s quite clear to me that this lady came here in order to find work and for that reason obtained the identity card and the Construction Industry Card.

7.  As to her possession of the forged identity card the matter of sentence has recently been settled by the Court of Appeal in the case of Li Chang Li (March 2005).

8.  An offence of this type in these circumstances should on a plea carry a term of 15 months imprisonment.  As to the other two offences the starting point of 3 months in each case was perfectly correct and those terms was discounted by one third to reflect the plea.  Everything was ordered to be served concurrently.  These sentences were absolutely correct.  The appeal has no merit whatsoever and must therefore be dismissed.