HKSAR v. NGUYEN KIM SAN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.179
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 9th March 1998, this Applicant (D1) was found guilty in the District Court of having committed three offences following a trial before Judge Toh. He pleaded guilty to four other offences. He was later sentenced to imprisonment amounting in total to 5 years and 3 months, against which he now seeks leave to appeal.

2. At his trial, the Applicant was the first-named defendant in an indictment which included three others who were also convicted. He was convicted with D2 and D3 on the first charge of conspiracy to forge Vietnamese refugee cards contrary to section 42(2)(a)(i) of the Immigration Ordinance, Cap. 115, and section 159A of the Crimes Ordinance, Cap.200. In addition, he was convicted with D4 of offences of possession of implements for making false instruments (charge 2) and possession of false instruments (charge 3), contrary to sections 76(2) and 75(2) of the Crimes Ordinance, respectively.

3. The four other offences to which the Applicant pleaded guilty (charges 4, 6, 7 and 9) were all for the possession, on different dates between September 1996 and June 1997, of a forged Vietnamese refugee card in the name of To Viet-minh, by which he is otherwise known.

4. On 23rd March 1998, the trial judge imposed a sentence of 4 years on charge 1, and she ordered all the other sentences to run concurrently except for 15 months in respect of count 9 which was ordered to run consecutively.

5. The Applicant, in his homemade grounds of appeal, complains that the sentence was too heavy and that there should be a reduction in the sentence because he alone made the items used "for proof of Vietnamese identity" and, to use his words, "I did it on my own and nobody else was involved".

6. Today in court, the Applicant has brought to the court's attention certain domestic hardships which he tells us are being suffered by his family in Vietnam. Whilst we can, of course, express sympathy for the hardship which is being suffered by his family, this cannot in our view amount to any mitigation for the offences committed during the course of last year.

7. The Applicant does have some experience of Hong Kong as he has re-confirmed today. He came here in 1988. In 1994, he received a sentence of 3 months' imprisonment for the possession of a false identity document. In 1995, he escaped from the closed camp where he was staying and received a further sentence of 2 months.

8. It is unnecessary to go into any detail about the facts of the present case. It suffices to say that the Applicant was apprehended as the result of a lengthy surveillance operation. He was convicted on evidence that was nothing short of overwhelming. There were observations on premises where he was seen committing some of the acts which relate to the conspiracy. There were video tapes which recorded what he was doing and his meetings with other conspirators, and there was the property which was found as a result of his arrest.

9. We note that the trial judge made a proper review of the sentencing authorities when deciding the appropriate sentence to impose. We can see no justification to interfere with the total sentence which was imposed for these crimes.

10. Accordingly, this application must be dismissed.