HKSAR v. NGUYEN MANH TRO

DCCC 504/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 504 OF 2013

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of remaining in Hong Kong without authority having landed unlawfully, contrary to section 38(1)(b) of the Immigration Ordinance, Chapter 115 (charge 1); one charge of possession of a forged identity card, contrary to section 7A(1) of the Registration of Persons Ordinance, Chapter 177 (charge 2); one charge of possessing false instruments, contrary to section 75(1) of the Crimes Ordinance, Chapter 200 (charge 3); and one charge of breach of deportation order, contrary to section 43(1)(a) of the Immigration Ordinance (charge 4).

2.  In summary at about 5.25 p.m. on the 4 April this year the police intercepted the defendant on the 6th floor staircase of No. 44 Tung Choi Street in Mongkok and asked for proof of his identity.  The defendant produced an expired Vietnamese passport. The defendant was then searched and in his wallet the police found three forged documents, namely a Hong Kong identity card, a Construction Industry Safety Training Certificate and a Construction Workers Registration Card all in the name of Nguyen Van Chung. 

3.  The defendant was arrested and under caution admitted he was an illegal immigrant having come to Hong Kong on the 20 January this year by speedboat.  The defendant said he paid $6,000 to arrange to come to Hong Kong and for the forged documents which he intended to use to obtain employment.

4.  Enquiries revealed the defendant was subject to a deportation order dated 30 December 2003, prohibiting him from entering Hong Kong for life.  The defendant was last deported on the 5 November 2007, also in breach of the same deportation order

5.  In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Chan, including that the defendant has two young children to look after and that he wishes to return to Vietnam as soon as possible and promises never to return to Hong Kong. 

Unlawful remaining

6.    In R v. So Man King [1989] 1 HKLR 142 the Court of Appeal held that allowing for a plea of guilty a sentence of 15 months imprisonment should be used as the basic guideline unless there are strong humanitarian considerations to depart there from.  The Court of Appeal further held that a court should take into account, by upward adjustment, any previous unlawful entry.

Possession of a forged identity card

7.  In HKSAR v Li Chang Li [2005] 1 HKLRD 864 the Court of Appeal said the sentence on a plea of guilty for possession should be 12 months imprisonment, irrespective of whether the offender was lawfully staying in Hong Kong.  However the courts have emphasised that the underlining criminality of an illegal immigrant in possession of a forged identity card is his unlawful presence in Hong Kong (see for example HKSAR v Tran Viet Thanh [2012] 1 HKLRD 903).

Possession of false documents

8.  There are no guidelines for possession of forged construction industry cards.  In HKSAR v Tran Viet Thanh the Court of Appeal approved a starting point of 12 months.  The appellant in that case was also sentenced for illegally remaining, possession of a forged identity card and breach of a deportation order.  The Court of Appeal said that the possession of false instruments was different in nature to the other charges and therefore ordered two months to be served consecutively. 

Breach of deportation order

9.  There are also no guideline sentences for breach of deportation order.  The maximum sentence for unlawful remaining is 3 years imprisonment, whereas the maximum sentence for breach of deportation order is 7 years imprisonment.  The courts have therefore viewed the offence as more serious than that of unlawful remaining and have upheld sentences of 18 months imprisonment after plea (see for example HKSAR v Nguyen Chi Trung HCMA 1095/2001 as applied in HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762).  Again a court should take into account, by upward adjustment, any previous breach.  

10.  In HKSAR v Pham Van Tuan CACC 272/2010 the Court of Appeal accepting that the offence of unlawful remaining is made more serious when there was a deportation order said that the underlying criminality for the two offences is the same, namely the defendant’s unlawful presence in Hong Kong.  The defendant in that case had three previous convictions for unlawful remaining and one for breach of a deportation order.  The court held that a total sentence of 23 months imprisonment after plea was appropriate. This was achieved by ordering 3 months on the breach of a deportation order to be served consecutively to the sentence for unlawful remaining. 

11.  In HKSAR v Bui Van Khai CACC 175/2012 where the defendant had two previous convictions for unlawful remaining and one for breach of a deportation order the Court of Appeal said that an overall sentence of 2 years imprisonment was a proper one after plea.  In HKSAR v Tran Viet Thanh where the defendant also possessed the false instruments the Court of Appeal said a total sentence of 25 months was appropriate, the defendant also having two previous convictions for unlawful remaining and one for breach of a deportation order.

12.  The defendant having one previous conviction for unlawful remaining; two for possession of a forged identity card; one for possession of a false instrument and one for breach of a deportation order, I am satisfied the proper starting point after trial for unlawful remaining and possession of a forged identity card is 2 years and 3 months; for possession of a false instrument is 1 year and 3 months and for breach of a deportation order is 2 years and 6 months. 

13.  Giving the defendant full credit for his pleas of guilty the sentences are reduced to 1 year and 6 months; 10 months and 1 year and 8 months respectively.  As in HKSAR v Tran Viet Thanh I am satisfied a total sentence of 25 months imprisonment properly reflects the defendant’s criminality on all four charges.

14.  The defendant is convicted and sentenced as follows:

Charge 1 – 1year and 6 months imprisonment;

Charge 2 – 1year and 6 months imprisonment concurrent to charge 1;

Charge 3 – 10 months imprisonment, 2 months consecutive and 8 months concurrent to charges 1 & 2;

Charge 4 – 1 year and 8 months imprisonment, 5 months consecutive and 15 months concurrent to charges 1, 2 & 3