HKSAR v. HOANG VU HUNG

HCMA555/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.555 OF 2003

(ON APPEAL FROM KCCC NO.1805 OF 2003)

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J U D G M E N T

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1. This is an appeal against sentence only.

2. The appellant was convicted on his own plea of offences of possession of a forged identity card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap.177 (being the 1st charged offence); of possession of a false instrument being a Safety Training Certificate, contrary to section 75(2) of the Crimes Ordinance, Cap.200 (being the 2nd charged offence); and of an offence of breaching a condition of his stay in Hong Kong by overstaying the permitted period by 10 months, contrary to section 41 of the Immigration Ordinance Cap.155 (being the 3rd charged offence).

3. In respect of the 1st charged offence the appellant was sentenced to 15 months' imprisonment, for the 2nd charged offence he was sentenced to nine months' imprisonment, and for the 3rd charged offence to two months' imprisonment. Eight months of the sentence imposed in respect of the 2nd charged offence was to be served concurrently with the other sentences and one month of that sentence consecutively to the other sentences, and the sentence imposed in respect of the 3rd charged offence was to be served wholly consecutively to the other sentences. That resulted in a totality of sentence of 18 months' imprisonment.

4. The appellant who is unrepresented complains that the sentences are too severe.

5. He advances no real basis for that complaint but simply asks that his sentences be made to run wholly concurrently so as to be in their totality a sentence of 15 months' imprisonment.

6. He says the reason for this request is that his mother has cancer in Vietnam, and she has no one to look after her except his father who is too old to do so properly. The appellant would like to be able to return to Vietnam in a few months so as to be able to look after his mother.

7. I must say that I am not sure that there is any tremendous difference in the period totally to be served in prison by the appellant even should his request be granted.

8. But in any event it seems to me that there is no basis for reducing the appellant's sentence as he requests.

9. Firstly, the magistrate's approach to sentencing was perfectly proper both in respect to each sentence imposed and the totality arrived at.

10. In the present case there were factors present which went beyond the more common occurrence of a person who perhaps had overstayed in Hong Kong for a few weeks or months simply producing a false identity card to police officers upon request.

11. Here the appellant had overstayed by some 10 months. In addition to possessing an expertly forged identity card he possessed also a false construction industry Safety Certificate allowing him to work on construction sites in Hong Kong.

12. In my judgment by effectively "enhancing" his total sentence to 18 months the magistrate was perfectly correct.

13. So far as the appellant's request to return to Vietnam somewhat earlier than otherwise would be the case so as to be able to care for his mother is concerned, there has been nothing put before me to support his assertion as to his mother's illness other than what he himself has been able to say. Additionally the appellant has two siblings, a sister living on social welfare in Hong Kong and a brother who is apparently an illegal immigrant in the United Kingdom.

14. I do not see why this jurisdiction should reduce the appellant's otherwise proper sentence, so as to allow his brother to remain where he is, or so as to avoid his sister having to purchase an air ticket and return to Vietnam.

15. In short no convincing humanitarian reasons have been advanced.

16. For these reasons the appeal is dismissed.