HKSAR v. TRAN VIET THANH

DCCC1354/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1354 OF 2010

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Reasons for Sentence

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1.  The defendant in this case, Tran Viet Thanh, pleaded guilty before me to the following charges: Charge 1, possession of a forged identity card; Charge 2, possessing false instruments; Charge 3, unlawful remaining; and Charge 4, breach of deportation order.

2.  All four offences took place on the 7th day of November, 2010. 

3.  On 20 December 2007, the then Permanent Secretary for Security of Hong Kong, Special Administrative Region Government, made a deportation order requiring the defendant leaving Hong Kong and prohibiting him from being in Hong Kong at any time thereafter. 

4.  On 19 June 2009, the defendant left Hong Kong for Vietnam.  At around 12.20 pm, on 7 November 2010, PC6798 and PC58944, PW2 and PW3, raided Room 3, 1st Floor, Fa Yuen Street, Mong Kok, Kowloon.  The police officers found the defendant in the premises.  PW2 asked the defendant for the production of his identity proof.  The defendant said he did not have any.

5.  Upon a body search conducted on the defendant, PW2 found the following items inside the left front pocket of the defendant’s trousers: (1) one forged Hong Kong ID card, Exhibit P1; (2) one forged construction worker registration card, Exhibit P2; and (3) one forged construction industry safety card, Exhibit P3.  All three cards bear the name of Lei Gie-ceng.  The police seized P1, 2 and 3 as exhibits.

6.  The defendant told PW2 that his real name was Tran Viet Thanh.  He bought P1 to P3 in Shenzhen, and he sneaked into Hong Kong in October 2009 from Shenzhen by a truck.  The defendant was then arrested by PW2. 

7.  At around 3.57 pm, on 7 November 2010, PW2 interviewed the defendant.  Under caution, the defendant admitted, inter alia, that: (1) he spent HK$8,000 for sneaking into Hong Kong illegally in October 2010; (2) he took a bus from Vietnam to Guang Xi and took another bus to Shenzhen; (3) he spent HK$500 to buy P1 to P3 in Shenzhen from an unknown person with a view to using them to facilitate him to find work in Hong Kong; (4) he sneaked into Hong Kong illegally by hiding himself in a truck from Lo Wu, Shenzhen.

8.  Mr Hung, document examiner of the Government Laboratory, confirmed Exhibit P1, P2 and P3 were forgeries.  The defendant had three previous convictions.  In 2007 the defendant was convicted of an offence of theft and one of unlawful remaining.  In 2008 the defendant was convicted of an offence of breach of deportation order.  He was sentenced to 18 months’ imprisonment for that offence. 

9.  The antecedent statement of the defendant shows that the defendant is now aged 24.  He received primary education in Vietnam.  He is a married man.  His parents are in their 40s.  He has one elder brother and one younger sister.

10.  Mr Man, in mitigation, submits that the defendant was discharged from prison in June 2009.  He returned to Vietnam, but he could not find a job.  He was abused by his parents and he received no family support.  He was also prosecuted by the Vietnamese government for leaving Vietnam without permission.  The authority was apprehending the defendant, and the defendant had no choice but to leave Vietnam again.  For that reason the defendant returned to Hong Kong. 

11.  The defendant is now remorseful.  He made frank admissions to the police and he cooperated with the police after his arrest.  Mr Man also handed up a letter written by the defendant in Vietnamese, translated into Chinese.  The defendant, in the letter, indicates that he is very remorseful for the offences that he had committed.  He asked for forgiveness by the court. 

12.  I indicated to Mr Man that I cannot accept counsel’s words that the defendant came to Hong Kong to escape persecution.  I asked Mr Man whether the defendant would like to give evidence to substantiate his claim that he had been under persecution.  Mr Man told me the defendant did not wish to give evidence to substantiate his claim.

13.  The facts, as admitted by the defendant, show clearly that the defendant came to Hong Kong with a view to look for a job.  If the defendant left Vietnam to escape persecution, as he claimed, which I rejected, he did not have to come to Hong Kong.  He could just have stayed in China.

14.  The facts show that the defendant spent HK$8,000 for sneaking into Hong Kong, and he spent another $500 to buy the forged ID card, and the forged construction worker registration card, and the forged construction industry safety card.  Obviously the defendant sneaked into Hong Kong with a view to look for a job in Hong Kong. 

15.  For the 1st charge, i.e. possession of a forged ID card, I follow the tariff as set down in Li Chong Li [2005] Vol. 1 HKLRD at 864.  According to the tariff as set down by the Court of Appeal, a sentence of 12 months is appropriate on a plea of guilty for possessing a forged ID card, and no distinction should be drawn between whether the offenders are legally or illegally in Hong Kong. 

16.  On Charge 1 I sentence the defendant to 12 months’ imprisonment.

17.  Charge 2 concerns one construction worker’s registration card and one construction industry safety training certificate. No doubt the defendant intended to use these false instruments to look for a job in Hong Kong.  I take 12 months’ imprisonment as the starting point.  I shall allow the defendant one-third reduction for his guilty plea.  Apart from the guilty plea there is no other mitigating factor.    

18.  For the reasons given, on Charge 2 I sentence the defendant to 8 months' imprisonment.

19.  According to So Man King [1989] Vol. 1 HKLR 142, the sentence of 15 months' imprisonment is suitable for the offence of unlawful remaining on a plea of guilty.  However, that sentence applies to a first offender.  In 2007 the defendant was convicted of unlawful remaining, for which he received 12 months' imprisonment. 

20.  In the present case a starting point of 24 months imprisonment is appropriate bearing in mind the defendant is a repeat offender.  I shall allow the defendant one-third reduction for his guilty plea.  That would bring the starting point of 24 months down to 16 months' imprisonment.  Apart from the guilty plea, there is no other mitigating factor. 

21.  For the reasons given, on Charge 3 I sentence the defendant to 16 months' imprisonment.

22.  The offence of breach of deportation order is regarded as more serious than the offence of unlawful remaining.  The defendant committed a similar offence in year 2008.  On that occasion he received a sentence of 18 months’ imprisonment.  In the present case a starting point of 30 months' imprisonment is appropriate.  Because of the guilty plea you are entitled to one-third reduction. 

23.  For the reasons given I sentence you to 20 months' imprisonment for the 4th charge. 

24.  I have taken into account the totality principle.  In my judgment, an overall sentence of 3 years’ imprisonment should adequately reflect the overall criminality for all four offences. 

25.  As observed by Madam Justice Beeson in the case, HKSAR v Vu Thi Tu HCMA1048/2001, submitted by the prosecution:

“...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.”

26.  I order the sentences for Charge 1 and Charge 2 are to run concurrently.  12 months for the sentence of Charge 3 shall run consecutively to the sentences for Charge 1 and Charge 2, and 12 months for the sentence of Charge 4 shall run consecutively to the sentences for Charge 1, Charge 2 and Charge 3, making a total of 3 years.