THE QUEEN v. BUI DUC-THANH

IN THE COURT OF APPEAL

MAGISTRACY APPEAL NO. 216/91

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BETWEEN

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JUDGMENT

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Hon. Yang, C.J. (giving the judgment of the Court):

1. This is an appeal from the sentences of a magistrate, referred to this Court by Barnes, J., on his own motion.

2. The appellant was convicted on his own pleas and sentenced by Mr. Jenkins sitting at North Kowloon Magistrate's Court as follows: -

3. The sentences were ordered to run consecutively, thereby making a total of 14 months' imprisonment. There is no appeal on Charge A or Charge D.

4. Four grounds of appeal have been advanced, namely: -

5. The facts are contained in the Summary of Facts, admitted by the appellant.

6. On the 14th January 1991, the police raided a flat in Shamshuipo, Kowloon and found the appellant and another Vietnamese in a room. The police found a Vietnamese refugee Card with the appellant's photograph on it but in another person's name. On being questioned the appellant admitted to the theft of the card which occurred on 30th December 1990 (Charge B) and replacing the photograph with one of himself (Charge C),. He also confessed to being one of the Vietnamese boat people of the Lo Wu Vietnamese Boat People Detention Centre from which he had escaped in November 1990 (Charge A). On the 2nd January 1991 he falsely claimed to be a refugee and mace a report to the police of the loss of his wallet containing his refugee card, and the police were misled into issuing him with a Loss Memo (Charge D).

7. In mitigation the appellant said he was about to be returned to Vietnam and he wanted to see Hong Kong before his departure. He said after sightseeing he would sneak back into the Detention Centre, and indeed he was about to do so when he was arrested. This did not find favour with the magistrate.

8. In passing sentence, the learned magistrate observed -

       "A Chinese illegal immigrant using or possessing a forged identity card (or one relating to another) would expect to receive a sentence of 15 months' imprisonment. I felt that an overall sentence of about the same length was also appropriate in the case of a   Vietnamese illegal immigrant. He clearly had possession of the forged refugee card in an attempt to enable him to remain at liberty in Hong Kong."

9. After imposing the sentence he did the learned magistrate upon reflection was of the view that it might have been more appropriate to treat all the offences as being part of the same transaction, namely, remaining in Hong Kong, and to impose say 15 months on the forgery charge by analogy with an illegal immigrant from China with concurrent terms of imprisonment on other charges. The end result would of course then he about the same.

10. Mr McCoy for the appellant argues that the appellant was not an illegal immigrant. He was lawfully detained in a detention centre pending the determination of his status. He was unlawfully at large in Hong Kong after his escape from the detention centre. But, unlike a Chinese illegal immigrant who has entered and remained unlawfully, his stay in Hong Kong was lawful as long as he remained within the detention centre.

11. Also, it is argued that the refugee card which he had stolen and forged was of limited utility only- it was only good for a Vietnamese, though it is conceded that it permitted him to remain in Hong Kong and outside the detention centre; it would also help him in his search for employment if he so wished.

12. Next Mr. McCoy urges that the magistrate erred in treating the appellant on the same basis as a Chinese illegal immigrant. 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.

13. The appeal is accordingly dismissed.