HKSAR v. NGUYEN THI LAN

HCMA 752/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 752 OF 2001

(ON APPEAL FROM SPCC 3454/2001)

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J U D G M E N T

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1. On 14 June of this year the Appellant who is a 30 year old single parent from Vietnam pleaded guilty in San Po Kong Magistracy to 3 offences as follows:-

2. She was sentenced in respect of (a) and (b) to terms of 15 months' imprisonment to run concurrently and in respect of (c) to a term of 8 months' imprisonment to run consecutively making a total of 23 months. She appealed against those sentences upon the ground that they were too severe and I dismissed that appeal on 31 August. These are my reasons.

3. In his reasons for sentence the learned magistrate inter alia said the following:

"(1) The appellant admitted the prosecution's summary of facts. According thereto she was stopped by the police for an identity card inspection and produced a forged identity card which she claimed to be genuine. She subsequently admitted to being an illegal immigrant from Vietnam and that she had bought the forged identity card after entering Hong Kong. She was the subject of a deportation order issued on the 14th April 1999.

(2) The appellant had one criminal conviction in Hong Kong. In October 1998 she was convicted of both possession of a false instrument and a charge identical to charge 1 for which she received concurrent sentences of 12 months' imprisonment.

(3) It was submitted in mitigation that the appellant was 30 years old. A single parent responsible for an 8 year old daughter and a mentally ill mother. Economic reasons had driven her from Vietnam and caused the commission of these offences.

There was ample authority that the proper sentence on a plea of guilty to charge 1 should be 15 months' imprisonment (So Man King 1989 1HKLR 142). I found no grounds to impose a lesser sentence, particularly as this was her second such offence. The inference was irresistible that she had purchased the forged identity card to further her illegal stay in Hong Kong and there was authority that in the circumstances the proper sentence on charge 2 on a guilty plea should also be one of 15 months' imprisonment (Chan Ming CA 353/1983, So Man King 1989 1HKLR 142, Chan Man Mo HCMA 1059/99).

I saw no reason to depart from that sentence. Since she had the forged identity card in order to further her stay in Hong Kong, I took the view that charges 1 and 2 formed part and parcel of the same transaction and imposed concurrent sentences on those charges.

Concerning charge 3, I took 12 months' imprisonment as the starting point (Cheema Asghar Sajjad MA 85/2000). I reduced the sentence to 8 months' imprisonment to give credit for the plea of guilty. I took the view that this sentence should be served consecutively. Whilst aware that a total of 23 months' imprisonment was a substantial sentence, it appeared to me that such a sentence was called for as the previous sentence of 12 months' imprisonment in 1998 had clearly failed to have deterrent effect."

4. Before me the Appellant repeated those matters of mitigation which had been placed before, and considered by, the learned magistrate. In addition she sought to say that from her enquiries of other prisoners her sentence was excessive.

5. It was not by reason of those matters referred to by the learned magistrate.