R. v. NGUYEN DUC QUAN

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEAL NO. 885 OF 1993

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J U D G M E N T

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Hon Yang, CJ:

1. On 5 October 1993, the appellant was arrested at the Kowloon Motor Bus Depot for having in his possession a Vietnamese Refugee Card with the photograph which was not his. The card was therefore a forgery. He had in fact escaped from the Whitehead Detention Centre some eight months previously on 9 February 1993, and bought the forged identity card for $2000 for the purpose of obtaining employment at the Bus Depot. He was charged with possession of unlawfully altered Vietnamese Refugee Card and escape from lawful custody, to both of which offences he pleaded guilty. He was sentenced to 12 months' imprisonment on the 1st Charge and four months imprisonment on the 2nd Charge, the sentences were ordered to run consecutively.

2. He had two previous convictions: one for escaping from lawful custody in 1991, and another case involving (a) possession of a forged Vietnamese Refugee Card, for which he was sentenced to three months' imprisonment; and (b) escape from Vietnamese Boat People Detention Centre, for which he was sentenced to two months' imprisonment, again the sentences were ordered to run concurrently.

3. On appeal this morning, it was argued on his behalf that the trial magistrate did not indicate the starting point for either of the sentence he imposed, nor did he indicate that a discount was given for the pleas of guilty. It was also argued that the magistrate was wrong in imposing a consecutive sentence rather than a concurrent sentence.

4. The magistrate, in his Reasons for Sentence, referred to two unreported cases, namely, R v. BUI Duc-thanh, Mag. App. No 216/91, and R v. LE Tien-hung, Mag. App. No 229/92. It is true that neither of these cases indicated a tariff or a guideline for similar offences but, nevertheless, they do give some indication as to the range of sentence that could legitimately be imposed for this type of case. It would appear that the magistrate adopted a starting point of nine months for the forgery charge, and one of three months for the escape charge after pleas of guilty. He indicated that he could not reduce the discount to any great extent because of the appellant's previous convictions. The order for the sentences to run consecutively was based on the facts, particularly in the light of the separation of some eight months between the two offences. It was argued on behalf of the appellant this morning that Mr Justice Sears, in a similar case, R v. VU Van-do, Mag. App. No 1127/91, said that the general practice among the magistrates was to make sentences in this type of case concurrent. I would, however, distinguish the present case from that of VU Van-do, in that the two offences in this case were separated by a long period of time, namely, eight months; the magistrate was therefore perfectly entitled to regard these as entirely different and distinct offences. I would suggest that, for an offence of possession of unlawfully altered Vietnamese Refugee Card, a starting point after trial should be one of 15 months, and an offence for escaping from a Detention Centre, the starting point should be one of six months after trial. The magistrate, whilst he did not indicate the exact discount he had given, appeared to me to have arrived at the correct sentence, having regard to the fact that the previous convictions prevented him from giving a greater discount than he would otherwise have given.

5. For these reasons, the appeal against sentence is dismissed.