HKSAR v. HOANG VAN GIA

HCMA 690/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 690 OF 2002

(ON APPEAL FROM TMCC 1826/2002)

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J U D G M E N T

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1. This is an appeal against sentences totalling 32 months imprisonment imposed on the Appellant on 27 June this year at Tuen Mun

Magistrates Court by Mr D I Thomas on 4 charges:

(Charge 1)	Possession of a forged identity card contrary to s. 7A(1) of the Registration of Persons Ordinance, Cap. 177.
(Charge 2)	Possession of a false instrument, namely a Construction Industry Safety Training Certificate contrary to s. 75(2) of the Crime Ordinance, Cap. 200.
(Charge 5)	Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully contrary to s. 38(1)(b) of the Immigration Ordinance, Cap. 115.
(Charge 6)	Breach of a deportation order contrary to s. 43(1)(a) of the Immigration Ordinance, Cap. 115.

The Appellant pleaded guilty to all 4 charges.

2. The Appellant was stopped by the police on the morning of 25 June 2002 in Tsuen Wan when he produced a forged identity card for inspection. When the police conducted an identity card check with the police console, the Appellant fled and was only apprehended after a chase of some 300. He admitted that he was an illegal immigrant from Vietnam. The forged Construction Industry Safety Training Certificate was found in his wallet.

3. The Appellant admitted that he had sneaked into Hong Kong by boat 5 days earlier and had bought the forged identity card and Construction Industry Safety Training Certificate from a friend in Hong Kong. The Appellant was in breach of a deportation order made on him over 2 years previously on 13 April 2000.

4. On the charge of possession of a forged identity card (Charge 1), the Magistrate sentenced the Appellant to 10 months imprisonment. On that charge of possession of a false instrument (Charge 2), the Magistrate sentenced the Appellant to 8 months imprisonment. On the charge of remaining in Hong Kong without the authority of the Director of Immigration (Charge 5), he sentenced the Appellant to 21 months imprisonment. On the charge of breach of deportation order (Charge 6), the Magistrate sentenced the Appellant to be imprisoned for 16 months.

5. The Magistrate ordered that the sentence on charge 2 should run concurrently with that imposed on count 1. He ordered that of the sentence on charge 5, 15 months should run consecutively to the sentences imposed in respect of charges 1 and 2. He ordered that of the sentence imposed on charge 6, 7 months should run consecutively to the sentences on charges 1, 2 and 5. This resulted in total sentences of 32 months imprisonment.

6. This was the 4th occasion that the Appellant had come to Hong Kong illegally. He had been convicted on 3 previous occasions of possessing false travel documents, on 3 previous occasions of unlawfully remaining having landed unlawfully and on one previous occasion of breach of the deportation order of 13 April 2000.

7. The written grounds of appeal are that the sentence is too severe. However before this court, the Appellant had said that he does not say that the sentences imposed by the Magistrate were wrong in principle; he simply asked the court to consider what he described as his "difficult personal circumstances".

8. There are that his 53 years old mother lives alone in Haiphong and suffers from back pain necessitating an operation. His brother is currently serving a sentence of imprisonment in Hong Kong and will not be released until May next year. He has a sister who is married and lives in Hanoi.

9. In light of the fact that the Appellant does not complain about the sentence in principle, I do not propose to say more than that I have considered the sentences individually and am satisfied that they cannot be criticised.

10. Having considered the judgment of Beeson J in Vu Thi Tu HCMA 1048/2001, McMahon DJ in Do Thi Hue HCMA 873/2001 and Hartmann J in Nguyen Bui Tuan HCMA 159/2001 I am satisfied that the Magistrate did not err in ordering that 15 months of the sentence on charge 5 should run consecutively to the sentences on charges 1 and 2 and that 7 months of the sentence on count 6 should run consecutively to the sentences on charges 1, 2 and 5. Bearing in mind the Appellant's previous record the overall sentence of 32 months imprisonment cannot be criticised.

11. The personal circumstances put forward by the Appellant before me today were essentially the same as those put forward to the Magistrate. I do not regard these circumstances as warranting any reduction in sentence on appeal.

12. The Appellant would have been fully aware of his mother's medical problems before he chose once again to leave her in Vietnam and illegally enter Hong Kong.

13. I dismiss the appeal.