HKSAR v. NGUYEN THANH HUYEN (also known as BUI Thi Yien)

DCCC 88/2018

[2018] HKDC 1220

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 88 OF 2018

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Reasons for Sentence

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Charges

1.  The Defendant (“D”) pleads guilty to the following charges:

(i) Using a forged identity card;

(ii) Taking employment while being a person in respect of whom a deportation order is in force;

(iii) Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong;

(iv) Breach of deportation order.

Facts

2.  At around 2000 hrs on 25 November 2017, PC 16024 (PW2) was patrolling in Causeway Bay and spotted D washing scallion at the back alley of Fei Chai Kee Noodles Shop, Ground Floor, No. 40 Jardine's Crescent, Causeway Bay, Hong Kong ("the Shop").

3.  PW2 therefore intercepted D and requested her to produce her identity card. D then told PW2 in Punti, “I am Vietnamese and I have no identity card. Three months ago I went from Vietnam to Shenzhen and then to Hong Kong by boat.”

4.  PW2 conducted further enquiries with Mr. SO Kam-pui (PW1), the person-in-charge of the Shop. PW1 told PW2 the following:

a) On 24th November 2017, his partner told him to check the identity documents of D if she comes to apply for a job;

b) At around 1200 hrs on 25th November 2017, D came to the Shop to start work and showed him an identity card bearing the name of YUEN Siu Ching, no. K850511(6), date of birth 25 March 1973;

c) Upon Checking the identity card, he did not notice anything unusual and he made a photocopy of it.

5.  At around 2030 hrs, PW2 arrested D for “Using a forged identity card”. 

6.  At around 2033 hrs, PW2 arrested D for “Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong”.

7.  At around 0130 hrs on 26 November 2017, a further cautioned interview was conducted and D stated, inter alia, the following:

a) She picked up the identity card in question, somewhere and sometime in Hong Kong;

b) After she found a job, she threw the forged identity card into the garbage bin but she forgot the exact location;

c) She thinks the identity card she picked up was fake as she picked it up from the street and used it for obtaining employment;

d) On 24 November, she went to look for a job at the Shop. However, as the boss needed her to show her identity card, and that she did not have one, she did not start working yet;

e) As she was running out of money, she then used the identity card she had picked up earlier to look for a job at the Shop and they hired her;

f) At the end of 2015, she took sampan from Vietnam to Guangxi, then took a bus from Guangxi to Shenzhen, and then took a boat from Shenzhen to Hong Kong;

g) After entering Hong Kong, she was arrested by the Immigration Department. She then raised a non-refoulment claim. Later on, she stopped reporting to the Immigration Department as the processing time is very long and she was afraid of being deported.

8.  Upon subsequent enquiries, it was revealed that a Deportation Order was issued to D on 6th May 2013.

9.  Upon subsequent enquiries, it was revealed that after D's request of review, D's non-refoulement claim, was rejected on 13th September 2017. 

10.  The photocopy of the identity card that D used at the material time was submitted for a Registration of Person Check and it was revealed that the identity card shown in the photocopy was invalid.

11.  At all material times, D used a forged Hong Kong Identity Card in the name of YUEN Siu Ching without lawful authority or reasonable excuse.

12.  At all material times, D, while being a person in respect of whom a deportation order was in force, took employment as a dishwashing worker.

13.  At all material times, D, having landed in Hong Kong unlawfully on or before 16th December 2015, remained in Hong Kong without the authority of the Director of Immigration.

14.  At all material times, D, being a person in respect of whom a deportation order dated the 6^th May 2013 was in force, was in Hong Kong in contravention of the said order.

Mitigation

15.  D is now 41 years old.  She was born to a poor farming family in Vietnam.  Her family is in Vietnam.  Her husband died in 2014 due to a car accident.  She had to work very hard to make ends meet.  She had tried to do some business but it failed, leaving her indebted for HK$200,000 to a triad member, who threatened to kill her for her default in repayment.  Besides, her younger daughter, now aged 17, suffered from a serious heart disease and needed money for surgery.  She therefore came to Hong Kong to seek safety and a job despite the deportation order.  She was caught on her first day of work. 

16.  Her previous record was a sentence in July 2012 of 15 months for unlawful remaining in Hong Kong and using a forged Hong Kong identity card. 

Sentencing considerations

17.  In HKSAR v Li Chang Li [2004] HKCLRT 193 the Court of Appeal stated that in the absence of exceptional circumstances the sentence upon guilty plea for possessing a forged identity card or an identity card belonging to another person should be 12 months’ imprisonment, irrespective of whether the offender was lawfully staying in Hong Kong.  Where such an identity card was displayed or used for seeking illegal employment or extending the period of stay in Hong Kong, the sentence upon plea should be 15 months’ imprisonment. 

18.  In HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762, the High Court stated in a magistracy appeal that breach of deportation order was a more serious offence than unlawful remaining, so that a sentence of 18 months after plea could not be criticized.     

19.  In HKSAR v Pham Van Quan DCCC 188/2017, apart from unlawfully remaining in Hong Kong (Charge 2), the defendant also used a forged Hong Kong identity card to get a dishwashing job in a restaurant (Charge 1).  He was in breach of a deportation order (Charge 3). He owed debts in Vietnam.  So he sneaked into Hong Kong to get a job.  He had a previous record for breach of condition of stay and possession of forged Hong Kong identity card, resulting in an overall sentence of 15 months. After plea, the judge sentenced him to 18 months, 15 months, and 18 months respectively for the 3 charges.  Based on a partly concurrent sentence, the overall sentencing was 21 months.  

Sentencing this defendant

20.  There is no proof of her daughter’s medical condition or urgency.  As such, it does not qualify as a mitigating factor or humanitarian ground. 

21.  For the 3^rd Charge (unlawful remaining), 15 months should be imposed on a guilty plea. For the 1^st Charge (using a forged identity card), 18 months should be imposed on a guilty plea. 

22.  I take a starting point of 18 months on the 2^nd Charge (taking employment while being a person in respect of whom a deportation order is in force) and 27 months on the 4^th Charge (breach of deportation order).  There is one-third discount for her pleas of guilty, resulting in 12 months on the 2^nd Charge and 18 months on the 4^th Charge.   

23.  After taking into account the totality principle, I make the following order:

(1) Concurrent sentences on the 1st, 2nd, and 3rd Charges, ie 18 months;

(2) 3 months of the 4th Charge to be consecutive to other charges;

(3) The overall sentence is 21 months.