HKSAR v. VU THI TU

HCMA 1048/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1048 OF 2001

(ON APPEAL FROM TMCC 2434/2001)

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J U D G M E N T

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1. The Appellant appeals against being sentenced to a total of 32 months in respect of 4 charges. The charges were:

(1) Possession of a forged identity card;

(2) Possessing a false instrument, which was a Construction Industry Safety Training Certificate;

(3) Remaining in Hong Kong without the Director of Immigration's approval or authority and

(4) Breach of deportation order.

2. The Appellant pleaded guilty to the charges and after considering the facts and mitigation the Magistrate sentenced her as follows. In respect of Charge 1, the Possession of Forged Identity Card, she was sentenced to 10 months imprisonment from a starting point of 15 months. In respect of Charge 2, the Appellant was sent to prison for a period of 8 months from a starting point of 12 months. For the charge of Remaining, the Magistrate increased the standard sentence to 18 months because of a previous similar offence committed by the Appellant. On Charge 4, Breach of Deportation Order, the Appellant was sentenced to 10 months imprisonment.

3. The sentences on charges 1 and 2 were ordered to run concurrently. The sentence on charge 3, that of the illegally remaining, was to run consecutively to the sentences on charges 1 and 2 and 4 months of the 10 months sentence for breach of the Deportation Order, was to run consecutively to the total of the sentences on charges 1, 2 and 3. This made a total of 32 months imprisonment.

4. The Appellant appeals on the grounds that:

(1) the Magistrate was wrong to impose the sentence of 18 months for Charge 3 and make it wholly consecutive to the sentences for the 1st and 2nd charges;

(2) the Magistrate failed to apply the totality principle appropriately and failed to make the overall sentence commensurate with the culpability of the Appellant; and

(3) in general, the sentences were manifestly excessive.

5. The Appellant was found in the New Territories in possession of the identity card. She insisted at the time the card was genuine. Also found in her possession was a Construction Industry Safety Training Certificate, which was subsequently discovered to be forged. The Construction Industry Training Association had never issued a certificate in the name on that certificate. Fingerprints taken from the Appellant indicated that she was in breach of a Deportation Order, dated 31.8.99, imposed in respect of an earlier offence of illegally remaining.

6. The Appellant admitted that she sneaked into the mainland from Vietnam on 18 July 2001and was taken from Shenzhen to Hong Kong by speedboat, landing on 25 July 2001. She met a friend in Hong Kong and was given a forged identity card and the forged Construction Industry Safety Training Certificate. The Appellant knew the documents were forged.

7. This Appellant appears to be a determined and persistent offender. She has previous convictions of a similar nature. On 27 July 1993 she was sentenced to 6 months imprisonment for Possession of Forged Vietnamese Refugee Card. On the same date she was convicted of escape from a detention centre and was ordered to serve 2 months imprisonment, concurrent to 6 months imposed on the 1st charge. In November 1997 she was fined $1,000 for Theft. Although no immigration charges accompanied that offence, it appears that the Appellant could not have been in Hong Kong legally at that time. On 18 September 1998 she was convicted of Unlawfully Remaining in Hong Kong and sentenced to 15 months imprisonment. It was against that background that the Magistrate chose the starting points and imposed the sentences which are complained of.

8. The Magistrate gave the Appellant full credit for her pleas of guilty. In respect of the 3rd charge, he increased the sentence from the standard 15 months imprisonment to 18 months because it was a repeat offence. He was entitled to do so. He ordered that the sentence for the 4th charge, the breach of Deportation Order, should run consecutively to the sentences for the other offences. Although counsel has urged this court otherwise, I cannot see that the Magistrate was wrong to do so, since it is entirely proper that the breach of Deportation Order should be considered separately and consecutively to the charge of illegally remaining; if it were otherwise the charge of breach of Deportation Order has no deterrent value whatsoever and loses its purpose.

9. The Magistrate also noted that there has been recently, a steady and marked increase in the number of Vietnamese entering Hong Kong unlawfully as economic migrants. He was in a position to comment on this because all the cases in the New Territories involving Vietnamese nationals and those of Vietnamese origin were heard in the Tuen Mun Magistracy, where the Magistrate heard this particular case. He considered there was a need to pass sentences that were sufficiently deterrent to dissuade Vietnamese economic migrants from entering Hong Kong unlawfully. That is a matter which the Magistrate can assess from his own experience and which he can properly take account of when sentencing.

10. The Appellant had no complaint about the individual sentences but complained about the way they were added together .

11. Having considered the matter, I cannot fault the way the Magistrate dealt with the sentencing. He took appropriate starting points. He considered the overall culpability. He was correct in my view to deal with the 3rd and 4th charges as consecutive charges and in consideration of the totality principle he ordered that 4 months only for the deportation order sentence should run consecutively.

12. Having said that however, and looking at the sentencing total I consider that the totality principle should have been taken into account to a greater extent than it was overall. To that extent, I alter the 3rd sentence, the sentence of 18 months imprisonment for illegal remaining to a sentence of 15 months imprisonment. In all other respects the sentences remain as they are, making a total of 29 months imprisonment.

13. I am aware that to adjust the totality of these sentences by this margin may smack of appellate court tinkering, but occasionally that is what an appellate court should do to ensure that the totality of a number of sentences reflects appropriately the degree of criminality revealed by a group of offences. In making that adjustment I wish to make it plain that I do not criticise the imposition of an 18 month sentence for a second offence of Illegally Remaining - that sentence, like the others, was in itself a proper sentence.

14. I am of the view however that the new total of 29 months is sufficiently high to achieve the goals of punishment, deterrence, prevention and rehabilitation that sentences such as this are meant to achieve.

15. The appeal is allowed in part, by reducing the sentence on Charge 3 from 18 months to 15 months.