THE QUEEN v. LUONG MANH HUNG

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HEADNOTE

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SENTENCE - USING VIETNAMESE IDENTITY CARD RELATING TO ANOTHER.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 902 OF 1991

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JUDGMENT

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1. The appellant pleaded guilty in San Po Kong Magistrates Court to using a Vietnamese Identity Card relating to another person, contrary to section 7 (A) (1A) of the Registration of Persons Ordinance, Cap. 178 and was sentenced by Mr Tallentire to 12 months imprisonment.

2. The appellant had escaped from Hei Ling Chau Detention Centre in March, 1991 and was arrested during a raid on a Hung Hom flat in July.

3. In mitigation the appellant, who was unrepresented at that stage, told the magistrate that he had escaped from camp when taken to see a doctor as he wished to see Hong kong. He did not explain how he had acquired the card but said he had applied for voluntary repatriation.

4. The magistrate called for a background report. This established that the appellant had deserted from the Vietnamese army in 1983 and had come to Hong Kong with his girlfriend in 1989. He had caused no trouble in the Detention Centre but had not registered for voluntary repatriation.

5. Mr McCoy, who appeared for the appellant on the appeal, said that he has now applied for repatriation. He submitted first that the magistrate appeared to have sentenced the appellant for escaping from the camp, although he was not charged with that offence. On the basis of the magistrate's Statement of Findings there is some justification for that criticism.

6. Mr McCoy's main ground of appeal however was that the magistrate had equated the appellant with a Chinese illegal immigrant, for whom the Court of Appeal in R. v. So Man-king [1989] 1 HKLR 142 has decreed that 15 months is the appropriate sentence in the absence of humanitarian considerations. He pointed out that this is intended to act as a deterrent to the thousands over the border who still seek to come to Hong Kong.

7. The magistrate referred to no authorities in his Statement of Findings but said "I took as my starting point the well established period of fifteen months immediate imprisonment". It would seem therefore that Mr McCoy is right and that the magistrate was referring to R. v. So Man-king.

8. The only case in which the Court of Appeal has considered the question of sentence on Vietnamese boat people is R. v. Bui Duc-thanh 14A216/91. The judgment in this case was handed down on 21st may 1991. The appellant was convicted on his own pleas as follows :-

9. The sentences were ordered to run consecutively, thereby making a total of 14 months impriosnment."

10. The circumstances were similar to the present case except that BUI was charged with escaping and also with the other offences which he admitted to the police. The magistrate in that case felt it was right to pass a sentence similar to that appropriate in the case of a Chinese illegal immigrant.

11. Dismissing the appeal Yang C.J., who delivered the judgment of the court, said at page 5:-

"We do not think the appellant's case necessarily equates with that of an illegal immigrant from China, except within the broad consideration that the dictates of social and economic order require Hong Kong to take a stringent view about those who come from other territories or remain here to the detriment of our society as a whole, particularly in such matters as housing, employment, medical services and so forth. There are good reasons not to permit such as the appellant to be at large within this community, and the appellant deliberately and actively took steps to contravene the law. A totality of 14 months' imprisonment in our judgment is not wrong in any way, nor do we criticise the consecutive sentences imposed on Charges B and C."

12. I take this to mean that a prison sentence will usually be appropriate in such cases and that it shoul include a deterrent component. Magistrates should however realise that the situation of the Vietnamese boat people is different to those from China and appropriate factors should be taken into account in individual cases.

13. Having regard to the fact that BUI was convicted of four offences and this appellant of only one I think this must be reflected in the sentence passed. In the circumstances I consider 12 months to be on the high side where only one offence is charged.

14. I therefore allowed the appeal and reduced the sentence to one of nine months.