HKSAR v. TRAN LE TUYEN AND ANOTHER

DCCC 20/2025

[2025] HKDC 2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 20 OF 2025

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REASONS FOR SENTENCE

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1.  On their own pleas and admission:

(a)  D1 is convicted of one charge of possession of four forged Hong Kong identity cards, contrary to section 7A(1)  of the Registration of Persons Ordinance; one charge of possession of false instrument, namely, one Construction Workers Registration Card and one Construction Industry Safety Training Certificate, contrary to section 75(1)  of the Crimes Ordinance (Charges 1 and 2).

(b)  D2 is convicted of one charge of possession of equipment for making false instruments, namely, 36 forged Hong Kong identity cards, contrary to section 76(1)  of the Crimes Ordinance; and one charge of resisting a police officer in the execution of his duty, contrary to section 63 of the Police Force Ordinance (Charges 4 and 5).

2.  In addition, both D1 and D2 also are convicted of a joint charge of possession of equipment for making false instruments, namely, forged Hong Kong identity cards, contrary to section 76(1)  of the Crimes Ordinance (Charge 3). 

The Facts

3.  The facts can be summarised as follows.  Very shortly before 8 pm on 8 August 2024, the police intercepted D1 as he came out from a flat on the 3^rd Floor of Lai Wing Building, situated at No 105 Argyle Street in Mong Kok (hereinafter referred to as “the Flat”). 

4.  Upon a body search, the police found on D1 the four forged HKID cards referred to in Charge 1, and the Construction Workers Registration Card and the Construction Industry Safety Training Certificate, listed in Charge 2. 

5.  Both the HKID cards and the construction industry papers were subsequently found to be forged documents. 

6.  A few minutes after that, the police gained entry into, among others, Room 1 of the Flat where D2 was seen to be striding over the windows.  In spite of the police officers’ demand for him to return to the room, D2 went out onto the window embankment and jumped down to the canopy on the 2^nd floor.

7.  One of the police officers, Sergeant 3734, gave chase.  Being pursued, D2 took out a pile of cards, 36 of them, from his sling bag and threw it at the sergeant.  Ignoring the repeated demands made by the sergeant for him to stop, D2 continued to flee. 

8.  When the sergeant caught up with him on the canopy of the 1^st floor, and managed to grab him on his shoulder from behind, D2 struggled vigorously, which caused the sergeant to lose his balance and fall onto the floor.  But eventually, seeing that there was nowhere to go, D2 raised his arms, which I take to be an act of surrender, and was then subdued. 

9.  The 36 cards thrown by D2 at the sergeant were later found to be half-completed forgeries of Hong Kong identity cards.  They were half-completed because only the back had a pattern resembling the back of a genuine HKID card.  The front of these cards were blank. 

10.  At around 8.14 pm the same evening, in the presence of D2, the police found inside Room 1 a large quantity of materials set out in Charge 3.  These materials were clearly there for making forged HKID cards and/or other false instruments, and they included, without repeating them all here: a total of 127 acrylic cards; over 4,930 laser stickers with the bauhinia pattern; a laptop computer; a printer; laminating machines; and one photographic paper printed with the front side of two HKID cards respectively in the name of Nguyen Thi Thoa and Lui Wai Shan.  Both of these copies of ID cards were also later confirmed to be forgeries. 

11.  In the laptop computer, the police found some HKID samples bearing the name of the said Lui Wai Shan, but with photos of different persons on them. In D1’s mobile phone, photos of some forged HKID cards were also found, and D1 admitted in his video interview that the cards appearing in the photos were the ones he delivered to other people on two previous occasions. 

12.  D2’s fingerprints were found on a number of materials seized by the police in Room 1.  And when the mobile phones of the two defendants were examined later, the police found that they had been in contact with each other for some time prior to the police raid in the evening of 8 August.  And it was also found by the police that a photo of D1, believed to have been taken on 7 July 2023, appeared in D2’s mobile phone. 

13.  Lastly, in a medical examination conducted in the small hours of 9 August 2024, Sergeant 3734 was found to have suffered abrasions on his forearm, his left elbow, his left palm, and his left knee.  In addition, he had a swelling at his kneecap area.  And the doctors also found bruises on his right knee and his back. 

Defendants’ Personal Background

14.  D1 is 65 years old.  He was born in Vietnam and came to Hong Kong illegally around 12 years ago.  He is a Form 8 holder, which means that he is on recognisance pending the determination of his non-refoulement claims. Currently, he is living with his wife, who is also a Form 8 holder in Hong Kong. 

15.  He has a previous conviction for theft, which was entered in May 2019, for which he was put on a bind-over.  It is said by his counsel in mitigation that D1 used to work as a lorry driver when he was back in Vietnam.  However, he suffered a stroke after landing in Hong Kong, which has left him partially paralysed, mainly on the right side of his body.  I have this morning a letter written for D1, which repeated some of the things I have already outlined. 

16.  Turning to D2.  He is 31 years old, a divorcee with two children, respectively 6 and 8 years old.  He came alone to Hong Kong, illegally also, in 2020.  And like D1, he is on recognisance from the Director of Immigration.  He has a clear record in Hong Kong. 

17.  According to D2’s counsel, D2 used to rely on a subsidy of around $3,000 from the International Social Service.  And it was said that he was introduced by a fellow countrymen to “participate in the fake identity card business in question”.  In return, D2 would receive some food and clothings from the people behind, but there was no other monetary reward. 

Mitigations

18.  The primary mitigating factor here is no doubt the defendants’ timely pleas.  That aside, it was urged on the court by counsel for both defendants that, as each defendant is convicted of three offences, the court should consider totality when sentencing. 

Sentencing Consideration

19.  There is no tariff or guideline laid down by the Court of Appeal for either the offence of possession of a forged HKID card or possession of a false instrument.  The statutory maximum term is 10 years’ imprisonment for the former and 14 years’ imprisonment for the latter.  The customary starting point would appear to be somewhere between 12 and 18 months’ imprisonment.  See for example, HKSAR v Li Chang Li, HCMA 935A/2004. 

20.  Likewise, the Court of Appeal has not laid down any sentencing guideline for the offence of possession of equipment for making a false instrument. However, depending on the purpose and the scale of the operation, it is not unusual for prison terms in the range of 2 to 3 years to be used as a starting point: HKSAR v Ho Wan Chung, CACC 374/2003, and R v Chan Sui To [1996] 2 HKCLR 128.

21.  At the same time, it is well established that committing an offence whilst on recognisance pending the result of one’s non-refoulement claim is to be treated as an aggravating feature warranting an increase of the sentence. 

22.  Now, of the five offences which I have to deal with, there can be no question that the most serious one is the offence of possession of equipment for making a false instrument.  For that reason, it may be convenient for me to deal with that first. 

23.  Before coming to a figure for the starting point, however, there are a few other matters which I believe I should address.  The first matter is the scale of the operation.  In the present case, the evidence shows that the operation involved over 4,900-odd laser stickers with the bauhinia pattern, a sticker which we all have on our HKID cards.  On top of that, there are a number of forged HKID cards and half-baked products waiting to be used as well. 

24.  In light of that, I am of the view that the operation can be properly regarded as one of medium scale.  And from the facts of the case, I think one can also infer that D1 was in the course of making a delivery of the finished products, namely, the four forged HKID cards under Charge 1 and the two cards for the construction industry under Charge 2. 

25.  Now the second matter which I have to say a word on is the impact of the offences.  Unlike the case of, for example, HKSAR v Sun Po Tak, DCCC 332/2021, cited by Mr Yuen on behalf of D1, where the forged HKID cards were used only for the purpose of making bookings for arenas provided by the Leisure and Cultural Services Department, the forged HKID cards and the other false instruments in the present case are clearly to be used by either illegal immigrants or people not lawfully employable in Hong Kong to obtain jobs or services available only to lawful residents.  To that extent, the offences involved in the present case are clearly more serious than the one the defendant faced in the case of Sun Po Tak. 

26.  The third matter is about the roles or the individual roles of the two defendants.  Having pondered upon this issue long and hard, I do not think the court is in a position really to make a meaningful differentiation of their roles, although, on the face of it, D1 would seem to be doing the work of a courier on the day of the police raid. 

27.  Fourthly, and lastly, in spite of the considerable sympathy I have had for D1 in light of his health condition, it is not such that I can properly look at it as a ground for lowering the sentence. 

28.  Taking all these matters into account, I am of the view that 2 years and 9 months’ imprisonment term is a proper starting point for Charge 3 for both defendants.  But that is to be increased by 3 months to reflect the fact that both defendants were on recognisance when committing the offence. 

29.  Dealing next with the starting point for Charge 1 and 4, both for possession of forged HKID cards.  In each case we are dealing with more than one card: 4 in the case of Charge 1 and 36 in the case of Charge 4.  In my view, a term of 18 months’ imprisonment is the lowest the court could consider as the starting point. 

30.  In relation to Charge 2, I shall take a starting point of 6 months. 

31.  Lastly, in relation to Charge 5, I shall adopt a starting point of 3 months.  In this connection, I pause to note that, given the location of the place where the sergeant had fallen, there was in fact a chance that he could have suffered much more serious injuries as a result.  D2 should consider himself fortunate for the sergeant to be only left with some bruises, abrasions and swellings. 

32.  With a full one-third discount for their timely guilty pleas, the sentence for Charge 1 and 4 will be reduced from 18 months to 12 months; the sentence for Charge 2 from 6 months to 4 months; the sentence for Charge 3 from 3 years to 24 months; and the sentence for Charge 5 from 3 months to 2 months. 

33.  Now as the offences under Charges 1 to 4 are all intertwined and clearly arose out of the same incident, I shall order the terms of these four offences to be served concurrently.

34.  The charge for resisting a police officer, however, cannot be so regarded.  Although it is connected with the other offences in terms of temporal proximity, it is an offence of an entirely different kind, and officers in the execution of their duty need to be protected.  With that in mind, I shall order half of the term, that is 1 month out of the 2 months term, to be served consecutively to the other terms D2 has to serve. 

Sentence

35.  By reason of the above matters, D1 is sentenced to 12 months’ imprisonment for Charge 1; 4 months’ imprisonment for Charge 2; 24 months’ imprisonment for Charge 3.  All terms to be served concurrently, making a total term of 24 months’ imprisonment. 

36.  In the case of D2, he is sentenced to 24 months term of imprisonment for Charge 3; 12 months for Charge 4; and term of 2 months’ imprisonment for Charge 5.  The sentences for Charges 3 and 4 are to run concurrently, with 1 month out of the 2 months term for Charge 5 to be served consecutively, thus making a total of 25 months’ imprisonment.