HKSAR v. HOANG, THI HANG

HCMA 607/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 607 OF 2016

(ON APPEAL FROM STCC NO 3971 OF 2016)

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J U D G M E N T

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Introduction

1.  On the 12 October 2016 the appellant pleaded guilty to charges 2 and 3, both charges of Using a forged identity card contrary to section 7A(1) of the Registration of Persons Ordinance, Cap 177.  She was sentenced to 23 months’ imprisonment.  She now appeals against her sentence.

Background

2.  The appellant admitted the following facts to support her plea.  She entered China from Vietnam in March 2016 and there purchased for RMB600 two forged Hong Kong Identity Cards from an unknown man.  She then entered Hong Kong illegally.

3.  On the 5 April 2016, the appellant obtained a cleaning job in a restaurant in Shatin using one of the forged cards.  The employer relied upon it to offer her a job.  The appellant then threw that card away.  These are the particulars of charge 2. 

4.  On the 10 October 2016, the appellant lost her key purse in a shopping centre in Shatin.  The receptionist there told her it had been handed in as lost property but she needed to show her identity card to redeem it.  The appellant took out her second forged Hong Kong Identity Card to use it to register her personal details.  That member of staff recorded down her personal details from it, these are the particulars of charge 3. 

5.  Whilst the appellant was still dealing with this matter she was spotted by a police officer.  The appellant then panicked and left in a hurry, dropping that identity card on the floor.  She was intercepted by that suspicious officer who then found her Vietnamese identity card and passport on her.  She was arrested.

Mitigation advanced

6.  The sentencing magistrate was told the appellant had a clear record in Hong Kong and was 56 years old.  She had left behind in Vietnam a retired husband and three children.  Her timely plea was noted as was the fact the use of the identity card meant she found gainful employment.  It was also noted the reason she used the forged card in charge 3 was to get her personal property back and the shopping centre would not have suffered any loss or prejudice. 

Sentencing

7.  The magistrate took into account HKSAR v Tran Viet Thanh[2012] 1 HKLRD 903 which found a 15-month sentence appropriate after a guilty plea for actually using a forged identity card. 

8.  The magistrate found no reason to depart from this guideline and took a starting point of 22 months and 2 weeks for both charges and reduced that to 15 months to reflect the plea.  He then considered the fact there were two cards used on two separate occasions as well as the totality principle.  He ordered 8 months of charge 3 to be served consecutively to charge 2 and the balance concurrently.  Hence the sentence of 23 months.

9.  Since the authority of HKSAR v Li Chang-li[2005] 1 HKLRD 864 as discussed in Tran Viet Thanh, the guidelines for sentence for an offence of this nature are clear and except in exceptional circumstances an immediate custodial sentence of 15 months is appropriate after a plea.

The appeal

10.  I have heard from the appellant and in essence her appeal is based on a request for mercy and a reduction in the sentence imposed.  She did say she only bought one forged identity card to Hong Kong as opposed to the two mentioned in the facts she admitted but confirms she did use a forged identity card on two separate occasions.  So this, despite the admitted facts setting out her purchase of two forged identity cards in China is neither here nor there.  The appellant does not suggest the magistrate has made any errors in sentencing.  She does expand on her mitigation and explains her daughter has a blood disease in Vietnam and her grandchild is not in good health.  The appellant borrowed a lot of money to pay for her daughter’s hospital bills and could not repay it.  She had never been to Hong Kong before but snuck in through desperation for work to repay her debts.

Discussion

11.  The appeal is an appeal by way of rehearing and I referred myself to the record to see whether there is any error made by the magistrate in his approach to sentencing the appellant.  In respect of the individual sentences he imposed there is no error; they are in line and consistent with the authorities.  They are neither excessive or wrong in principle. 

12.  This brings me to the order that they are served partly consecutively.  Charge 3 is quite separate from charge 2 in particulars and timing.  It does add to the overall culpability of the appellant’s conduct.  Concurrent sentences would have been wrong in principle as would have been consecutive sentences.  If a defendant commits more than one offence of a similar nature at different times, then he will invariably be liable to a higher penalty.  A person who commits one offence cannot expect to do it again without impunity.

13.  Is 8 months of charge 3 to be made consecutive to charge 2 excessive?  In deciding how many months to make consecutive requires the Magistrate to ensure he avoids imposing a total sentence that is too severe and unjustified.  He should assess the overall criminal criminality of the appellant’s crimes.  Here the magistrate made 8 months or about 50% consecutive.  Ms Ma for the respondent did submit an authority, HKSAR v Mohomed Rahoof Mohomed Sajahan, HCMA 270/2014 to demonstrate the 15-month sentence after a plea is equally applicable to a defendant who uses a forged identity card to prolong her stay here or hide her identity.  The respondent submits that sentence is equally applicable to the facts of charge 3 as it is to charge 2 where the appellant used it to obtain employment.  I agree with her submission but at the same time mindful of the very different motive behind using a forged identity card in both instances.

14.  Although I do not find any fault in the individual sentences, I find the total sentence of 23 months on the high side when I take into account the appellant’s criminality overall.  I am of the view that a sentence of 19 months’ imprisonment in this present case will suffice to reflect the culpability of the appellant.

15.  The appeal is allowed to the extent that now 4 months of the 15-month sentence of charge 3 will be served consecutively to the 15‑month sentence of charge 2.  The appellant is to serve a term of imprisonment reduced from 23 months to a total of 19 months.