HKSAR v. NGUYEN THI THOM

DCCC 1139/2021

[2022] HKDC 737

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1139 OF 2021

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

Charges

1.  The Defendant pleads guilty to using a forged identity card (Charge 1), unlawful remaining in Hong Kong (Charge 2), and breach of deportation order (Charge 3).

Facts

2.  On the afternoon of 23 August 2021, she attended King Lam Medical Centre in King Lam Estate, Tseung Kwan O, New Territories, a private clinic participating in the COVID-19 vaccination programme, and presented a forged Hong Kong identity card bearing number R000226(6)  in the name of NGUYEN Thi Thiep (“the identity card”)  to a nurse (“PW1”)  for registration.

3.  After she had been vaccinated, PW1 tried to enter the information on the identity card into the Hong Kong Government e-Health System but the information was rejected.  PW1 examined the identity card more carefully and suspected it was forged.  Case was reported to police.

4.  Police officers attended the scene.  Upon search, she was found in her possession a Vietnamese passport in the name of NGUYEN Thi Thom. 

5.  She was arrested.  Under caution, she admitted having sneaked into Hong Kong in April 2021, and using the identity card which she bought at HK$500 in order to get vaccinated for free.

6.  The identity card was examined by a Government Chemist and found to be forged based on the lack of security features and the inferior printing quality.

7.  Investigation revealed that she was a returned deportee in breach of a deportation order dated 15 May 2006 prohibiting her from being in Hong Kong.

Mitigation

8.  She is 64 years old.  She was born in Vietnam.  She had the following records:

(1)  In TM/2132/02 on 23 July 2002 she was sentenced for theft to 18 days and breach of condition of stay to 2 months, a concurrent sentence;

(2)  In TM/2513/05 on 17 August 2005 she was sentenced for unlawful remaining in Hong Kong to 14 months;

(3)  In TM/3178/07 on 27 October 2007 she was sentenced for breach of deportation order to 12 months and 16 months for unlawful remaining in Hong Kong, a concurrent sentence;

(4)  In KC/2212/11 on 3 June 2011 she was sentenced for unlawful remaining to 18 months and breach of deportation order to 14 months, a concurrent sentence.

9.  Counsel asks me to consider a concurrent sentence for all 3 charges.

Sentencing considerations

10.  The sentence guideline indicates 15 months for a first offender pleading guilty to using a forged identity card to conceal his identity, work illegally or unlawfully further his stay in Hong Kong (HKSAR v Li Chang-li [2005] 1 HKLRD 864).   

11.  The sentence guideline indicates 15 months for a first offender pleading guilty to unlawful remaining in Hong Kong (R v So Man-king [1989] 1 HKLR 142).

12.  The court has approved 27 months for a first offender and 30 months for his second breach of deportation order (HKSAR v Gabriel, Malou Lantin [2004] HKCFI 781). 

13.  In one case the defendant pleaded guilty to using a false identity card, unlawful remaining, and breach of deportation order (HKSAR v Dang Thi Sum HCMA 546/2008).  The judge on appeal regarded that using a false identity card and unlawful remaining in Hong Kong as warranting concurrent sentences whereas the sentence for breach of deportation order shall be partly consecutive thereto. 

14.  In another case later the defendant pleaded guilty to unlawful remaining in Hong Kong for the third time, in breach of deportation order for the second time, and used the copy of a false identity card to get a job (HKSAR v Nguyen Thi Hoa [2016] 2 HKLRD 955).  The Court of Appeal regards unlawful remaining in Hong Kong and breach of deportation order as sharing the same underlying criminality, based on HKSAR v Bui Van Khai [2013] 2 HKLRD 471 and HKSAR v Ta Dinh Son CACC 348/2013).  A concurrent sentence is appropriate, though partly consecutive to the sentence, to the extent of 2 months, for using a copy of a false identity card due to the totality principle.  The total sentence was reduced from 30 months to 22 months. 

15.  I think the latter approach, along the line of the Court of Appeal in Nguyen Thi Hoa, should be followed. 

16.  As a side note, the appeal judgment makes no mention of what lapse of time there was from the second round to the third round of entry and breach so as to justify an increased sentence for a repeat offender.  I take it from the slight increase in the sentence that the defendant was treated there as a repeat offender who reoffended not long after he had completed the sentence for the second round. 

Sentencing the Defendant

17.  Despite the government chemist’s finding, I find the forged identity card quite passable unless examined very closely alongside a genuine one. I sentence her to 15 months upon her plea of guilty to using a forged identity card (Charge 1). 

18.  I sentence her to 15 months upon her plea of guilty to unlawful remaining in Hong Kong because although it is her third record, there was a lapse of more than 10 years from her second record (Charge 2).     

19.  It was her third record for breach of deportation order but there was a lapse of more than 10 years after her second record.  I take 27 months as the starting point (Charge 3).  After the one-third discount for her plea of guilty, the sentence is 18 months. 

20.  The facts here are quite similar to Nguyen Thi Hoa except for the long lapse of time here between our defendant’s second round and the present third round of entry and breach.  I order Charges 2 and 3 to be served concurrently, hence 18 months.  I consider the totality principle and order 2 months of Charge 1 to be served consecutively.  The total sentence is 20 months.