HKSAR v. NGUYEN THI BICH THOA also known as NGUYEN THI BICH THOA

DCCC 581/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 581 OF 2013

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REASONS FOR SENTENCE

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1. The defendant (a female) (aged 46) appeared before me this afternoon and pleaded guilty to three charges, namely, 1st charge, “Using a forged identity card”, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap 177; 2nd charge, “Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong”, contrary to section 38(1)(b) of the Immigration Ordinance, Cap 115; and finally, 3rd charge, “Breach of deportation order”, contrary to section 43(1)(a) of the Immigration Ordinance, Cap 115.

Facts

2. This is a very simple and straightforward case.  The defendant was stopped and searched by the police at 7.25 am on 24 April 2013 when she was found acting nervously working in a vegetable wholesale store situated in No. 33 Lung Sum Avenue, Sheung Shui, New Territories. 

3. She was intercepted by the police whereupon she showed a forged Hong Kong ID card to the policeman for inspection.  As the policeman found that the colour and fonts of the identity card in question were different from the normal Hong Kong identity cards, the policeman enquired the defendant about it.  It was then that the defendant admitted that the ID card in question was forged and that she had bought it in the mainland for HK$1,000.  She further freely admitted that she had entered Hong Kong illegally two months ago to look for a job.  She also admitted that she had shown the forged Hong Kong ID card to the operator of the vegetable store to look for a job in the evening of the previous day. 

4. Under caution, after she was arrested, she repeated that she came to Hong Kong illegally from the mainland two months ago to look for a job and that she bought the ID card for HK$1,000.

5. The police later sent the suspected forged Hong Kong ID card to the Government Laboratory for examination and it was confirmed to be a forged Hong Kong ID card.  Further investigation confirmed that the defendant was subject to a deportation order first issued on 24 June 1997.

Criminal records and the background of the defendant

6. The defendant had in the past 7 conviction records involving 18 charges starting from 1994 to 2008.  Out of the 18 charges, 5 were for “Breach of deportation order” and 5 for “Remaining in Hong Kong without authority”. There are also another 5 charges for “Possession of a false Hong Kong ID card”.

7. Mr Yeung, solicitor for the defendant, informed the court that his client is a Vietnamese and she first came to Hong Kong together with her husband as a refugee back in 1989.  They were then detained in the Whitehead refugee camp and during which time they gave birth to two children: a daughter and a son and they were born respectively in 1990 and 1991.  The family was later voluntarily repatriated back to Vietnam in 1995 but after she returned to Vietnam, she could not find a job and she decided to come back to Hong Kong, albeit unlawfully without her husband and committed the offence of “Possession of a forged document”.  After serving the sentence, she was deported back to Vietnam.  Later, her husband had left her and the family and the two children were then under the care and custody of her sisters.

8. Mr Yeung informed the court that the reason why in the subsequent years the defendant came back to Hong Kong on and off to commit further immigration offences was because she was under economic pressure to raise the two children.  The two children were now both studying in a university in Vietnam and they were due to be graduated this year.  The present offence was committed by the defendant in order to pay the tuition fees.  Mr Yeung submitted therefore that after both children have graduated from the university, the economic condition of the family would be improved and the chance of the defendant coming back to Hong Kong to commit further offence is therefore low.

9. Mr Yeung acknowledged that there are guidelines for illegal remaining offences but submitted that as the economic condition in Hong Kong has changed, the question of influx of refugees or illegal immigrants has become less prevalent during recent years. Therefore he asked the court to exercise the discretion not to follow the guideline strictly.

10. Mr Yeung also acknowledged that the defendant had a bad or appalling record but he still reiterated that the defendant had pleaded guilty this time and asked the court to consider the question of totality when imposing the overall sentences for the three charges.  He asked the court to consider imposing an overall concurrent sentence to deal with all three offences together.

Sentencing considerations

11. A sentence of 15 months’ imprisonment was appropriate for possession of a forged identity card by an illegal immigrant of which the underlying criminality was his unlawful presence in Hong Kong. 

12. In the case of HKSAR v Tran Viet Thanh [2012] 1 HKLRD 903, the Court of Appeal had held that if an illegal immigrant made use of a card to obtain a benefit such as to open a bank account or to work illegally, then the 15 months’ sentence could be adjusted upwards.  Further, the Court of Appeal held that a concurrent sentence was appropriate for the forged identity card offence and unlawfully remaining offence save in exceptional circumstances. (See R v So Man King [1989] 1 HKLR 142, and also R v Chan Wun Sang [1995] 1 HKCLR 46)

13. As for the “Breach of the deportation” offence, if this is the first time that the defendant committed the offence, according to the case of HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762, the High Court had held after reviewing the authorities that a sentence of 18 months’ imprisonment was appropriate.  For an offender such as the defendant who had already committed a similar breach of deportation order for five times in the past, the sentence must be adjusted upwards.

14. In HKSAR v Pham Van Hung CACC 14 of 2011, the Court of Appeal had imposed a sentence of 28 months after the applicant had pleaded guilty to “Breach of deportation order” (it being the fifth conviction).  Apart from this breach of deportation order, the same applicant was also convicted of a sentence on his plea of “Unlawfully remaining” (that being the sixth conviction).  The Court of Appeal had imposed a sentence of 20 months in that case.  In the end, the Court of Appeal ordered that both sentences to be served concurrently.

15. Applying the above authorities, this will be my sentence for the three charges in this case.  For Charge 1, “Using a forged identity card”, the defendant is sentenced to 18 months’ imprisonment.

16. For Charge 2, “Unlawfully remaining in Hong Kong”, (this being the sixth conviction and that the last conviction was already 21 months), I must adjust the sentence upward to achieve the deterrent effect.  The sentence that I shall impose is therefore 24 months’ imprisonment.

17. For Charge 3, “Breach of the deportation order”, again this is already the sixth time that the defendant was convicted of a similar offence. I will impose a 28 months’ imprisonment.  And for the three offences, applying the principle of totality, I shall order the sentence of each charge to run concurrently.  The total sentence is therefore still one of 28 months’ imprisonment.