HKSAR v. NGUYEN VAN THANH

HCMA872/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.872 OF 2001

(ON APPEAL FROM TMCC 2146 OF 2001)

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J U D G M E N T

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1. This is an appeal against sentence only. The appellant pleaded guilty to an offence of remaining in Hong Kong without the authority of the Director of Immigration, an offence of possession of a forged identity card and an offence of possession of a false construction industry safety training certificate.

2. In respect of the first of those offences, he was sentenced to 15 months' imprisonment. To the second offence, he was sentenced to 10 months' imprisonment and to the final offence, eight months' imprisonment. The sentences for the second and third charged offences were ordered to be served concurrently. The sentences for the first and second charged offences were ordered to be served consecutively. That resulted in a totality of 25 months' imprisonment.

3. Mr Chan, on behalf of the appellant, urges one effective ground of appeal. He says that the magistrate was wrong to impose consecutive sentences, so far as the offences of unlawfully remaining in Hong Kong and possession of a forged identity card were concerned.

4. In support of this assertion, he relies on the authorities of R. v. So Man-king [1989] 1 HKLR 142 and A.G. v. Lam Ping-chun [1989] 1 HKLR 161.

5. In So Man-king, the appropriate penalties for the different offences of unlawfully remaining in Hong Kong and the possession of a forged identity card or of possession of another person's identity card were examined so far as those offences were committed by persons unlawfully in Hong Kong. In that case, it was argued on behalf of some of the appellants that the basis of the approach to sentencing in respect of the three sorts of offence should differ as the offences were different in nature. Within the course of the judgment, the Court of Appeal said this :

" In the course of submissions we have been referred to many authorities that have dealt with the appropriate sentence for offences under s. 38(1) of the Ordinance and the related offences of possession of a forged identity card or using that of another person.

Mr. Cheng Huan for the appellants has argued strongly that there is a significant legal and moral distinction between the two kinds of offence. He suggests, borrowing the words of O'Connor, J. in R. v. Lam Shui-leung [1987] HKLR 57 at 58F, that commission of the latter offences enables the culprits 'to masquerade as persons entitled to be in Hong Kong', whereas persons such as the appellants make no such pretence.

It has to be acknowledged that there may be circumstances in which the use of such cards will be an aggravating feature, but in our view the authorities draw little, if any, distinction in the ordinary run of the mill cases. The substantial element in sentencing for all three offences is the unlawful presence in Hong Kong. ..." (emphasis added)

It is plain that the court regarded the different offences, so far as sentence was concerned, as sharing one culpability. That is, the sentence imposed in respect of all should reflect and be a deterrent to such offenders unlawful presence in Hong Kong.

6. The judgment went on to deal with the situation where an individual may have been both in Hong Kong unlawfully and have used a forged identity card or where there may have been some other aggravating factor in addition to the offence of unlawfully remaining. The court said in that regard this :

"... On the other hand, the Court should take into account, by upward adjustment, any previous unlawful entry, whether resulting in prosecution or not, and other circumstances which may aggravate the offence, such as the actual use of a forged or other person's identity card to obtain some particular benefit."

7. It is apparent from that judgment that sentencing for these offences, whether unlawful remaining in Hong Kong or possession or use by such a person of a false or another person's identity card, should be on the same basis, being based on the same culpability, and that if more than one of the unlawful activities is involved, then that may be an aggravating factor to be taken into account.

8. In Lam Ping-chun, the Court of Appeal reiterated that :

"... the substantial element in sentences passed for all three offences was the defendant's unlawful presence in Hong Kong, which in itself, in normal circumstances, merited a sentence of 15 months' imprisonment; the actual use of a forged or other person's identity card to obtain some further or particular benefit could be considered an aggravating feature."

The court emphasis that their judgment in this regard as in So Man-king related to the different offences sharing a common factual feature of having been committed by a person unlawfully in Hong Kong.

9. On the reasoning evident in these two judgments, it should make little difference to the end sentence whether an unlawful immigrant to Hong Kong is charged with one offence or the other. If he is charged with only one offence, for example, unlawfully remaining in Hong Kong, and the facts show in addition his use of a forged identity card, then that may well be an aggravating factor. Reason would suggest that if he were to be charged with both offences, then the total sentence would be the same as that which should have been imposed if he was charged with only one offence and the facts of the other had been dealt with as an aggravating factor.

10. The fundamental point arising out of So Man-king and Lam Ping-chun is that the substantial element in sentencing for either sort of offence is directed at the offender's unlawful presence in Hong Kong. It is for that reason no doubt that in R. v. Yee Yick Hong, HCMA351/1996, Leong J (as he then was) held that unless there were exceptional reasons, sentences imposed for offences of unlawfully remaining in Hong Kong and of possession of a forged identity card should be concurrent.

11. In HKSAR v. Ngyuen Van Truong, HCMA612/1999, Woo J (as he then was) said in dealing with an appeal against sentences imposed in respect of offences of unlawfully remaining in Hong Kong and possession of a forged refugee card :

"According to the principles and the spirit of So Man-king, in the present case, the gravamen of the two offences committed by the Appellant is his illegal stay in Hong Kong. Accordingly, the sentences for the two offences should run concurrently, and not consecutively. Furthermore, [there is] no evidence that the Appellant had used or made use of the forged document to obtain any particular or further benefit. For these reasons, I allow the appeal, and order the sentences for the two offences to run concurrently: total sentence being 15 months' imprisonment."

12. Accordingly, it seems to me that so far as the situation of an individual committing the offence of unlawfully remaining in Hong Kong and contemporaneously possessing a forged or another person's identity card is concerned, that in terms of totality of sentence after pleas of guilty, the usually merited sentence is 15 months' imprisonment. That would vary depending on whether there have been any aggravating factors which would have enhanced the notional starting point of sentence or any mitigating factors which would reduce the sentence further from the 15-month period.

13. In the event there was use of a forged identity card, then that would usually be taken into account as an aggravating factor. In HKSAR v. Chan Man Mo, [2001] 1 HKLR 121, Bokhary J said in the course of a judgment which dealt with a number of scenarios relating to people lawfully and unlawfully in Hong Kong being in possession of or using forged or other persons' identity cards :

"Where the offender's presence in Hong Kong was illegal at the time of his offence, whether because he was an illegal immigrant or because he was an overstayer, a sentence of about 15 months' imprisonment upon a plea of guilty would be appropriate if he had a forged or somebody else's identity card for the purpose of obtaining employment or otherwise furthering his remaining in Hong Kong."

And she went on to say :

"It is an element of aggravation if an offender, whether here legally or illegally, actually produced a forged or somebody else's identity card to a police officer conducting an identity card check. Such conduct ought to be reflected by about an extra two months' imprisonment."

It seems to me that is a proper statement of the law and rationally reflects the effect of the underlying principle of So Man-king.

14. What then of the position where an unlawful stayer in Hong Kong has in his possession other false documents, which are designed to assist his stay in Hong Kong, apart from a forged or false identity card. It seems to me the same principles apply. That indeed was the fundamental assumption made by Woo J in Nguyen Van Truong where the court was dealing with a forged refugee card rather than a forged identity card but applied nevertheless the principle of So Man-king.

15. Accordingly, in the present case, so far as sentence is concerned, the appropriate sentence after a plea of guilty should have been 15 months' imprisonment so far as the offence of unlawfully remaining in Hong Kong was concerned.

16. The sentence of 10 months imposed after plea in respect of the second charged offence of possession of a forged identity card cannot be and has not been criticized before me. Similarly, the sentence of eight months' imprisonment imposed after plea in respect of the third charged offence, the possession of a forged construction safety training certificate, is not and cannot be criticized.

17. But in my judgment, for the reasons I have given, the magistrate was wrong to order the sentence imposed in respect of the first charged offence of unlawfully remaining in Hong Kong to be consecutive to any of the others. The proper course would have been, in considering the totality of sentence, to have regard to the offence represented by the second charged offence as enhancing the overall criminality of the appellant's unlawful presence in Hong Kong for the simple reason, that the appellant used a forged identity card. In the terms of Chan Man Ho, that would mean a further two months' imprisonment to reflect the additional criminality.

18. So far as the third charged offence is concerned, the appellant did not, or at least there was nothing produced to the magistrate to suggest otherwise, attempt to use the false certificate. On that basis, the learned magistrate was entitled to order the sentence so far as that offence was concerned to run concurrently with the sentence imposed in respect of the second charged offence.

19. I must say, however, that I do not see any reason why, in appropriate cases, if an offender such as the present appellant has a series of false documents in his possession aimed at securing his stay and employment in Hong Kong, in addition to a forged or other person's identity card, that could not be taken into account as a further aggravating factor.

20. In the present case, the appropriate totality of sentence, in my view, was one of 17 months' imprisonment. That reflects the offence of unlawfully remaining in Hong Kong warranting a sentence of 15 months' imprisonment and of the aggravating factor of actual use of a forged identity card.

21. Accordingly, the appeal against sentence is allowed to the extent that the sentences imposed by the learned magistrate are confirmed so far as each charged offence is concerned, but varied in that I order that they all be served concurrently, except that two months of the sentence imposed in respect of the second charged offence be served consecutively to the sentence imposed in respect of the first charged offence. That is a totality of 17 months' imprisonment.