HKSAR v. VU THI PHUONG

HCMA390/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATION REGION

COURT OF APPEAL

MAGISTRACY CRIMINAL APPEAL No. 390 OF 2000

(ON APPEAL FROM SKCC 805 OF 2000)

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J U D G M E N T

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Hon Chan CJHC:

1. The appellant pleaded guilty before a magistrate to two charges : first, the possession of a forged Vietnamese Refugee Card and second, remaining in Hong Kong without the lawful authority of the Director of Immigration. She was sentenced to 8 months imprisonment for the first charge and 13 months for the second charge. The magistrate ordered that 4 months of the first sentence should run consecutively with the second sentence, making a total of 17 months. The appellant now appeals against sentence.

2. On 22 March 2000, the appellant was stopped by a police officer in the street in Shek Kip Mei. She was asked to produce proof of her identity. Thereupon she presented a Vietnamese Refugee Card which turned out to be a forged one. Upon inquiry by the police, the appellant admitted that she was an illegal immigrant from Vietnam having sneaked into Hong Kong earlier on and purchased the forged Vietnamese Refugee Card in Hong Kong for US$500. She said that she might want the card to get a job.

3. The appellant is 36 years of age. She was a teacher in Vietnam. She has two sons aged 16 and 8 who are now in Vietnam. She was divorced. Both her parents had passed away. She tells me that she has a grandmother who is now in hospital. She says that she came to Hong Kong with a view to earn a better living. I think it is only fair to say that I agree with the magistrate that there is no exceptional circumstance or humanitarian ground which merits a departure from the usual sentence of 15 months imprisonment.

4. I do not see any real difference between illegal immigrant from China or an illegal immigrant from Vietnam for the purpose of this case. That, I believe, is also the attitude of some judges. The appellant is of course convicted of two charges. It can be said that a person who has illegally entered Hong Kong or is illegally remaining in Hong Kong need not be in possession of a forged Vietnamese Refugee Card or identity card and hence, if he is found guilty of both offences, the total sentence should logically be longer than 15 months. On the other hand, there were cases in which the appellate court had upheld concurrent sentences in relation to offences similar to those in the present case.

5. There are, of course, a variety of reasons, most of the time mixed reasons, for an illegal immigrant to obtain a forged identity document. He may use it to cover up the fact that he is an illegal immigrant or he may use it to find employment. In R. v. So Man-king [1989] 1 HKLR 142 and AG v. Lam Ping-chun [1989] 1 HKLR 161, the court took the view that for this type of offences, the substantial element is the unlawful presence in Hong Kong and hence, the normal sentence would be 15 months imprisonment. In my view, where there is no evidence of illegal immigrant having made use of the forged document to look for employment, the more lenient step to take, as that taken by Woo J (as he then was) in HKSAR v. Nguyen Van Truong, HCMA 612/1999 (unreported), is to order the two sentences to run concurrently.

6. In the circumstances of this case, it appears that although there are no strong humanitarian grounds, it does appear that some sympathy could be given to the appellant. For these reasons, taking the more lenient view of the matter, I would have ordered the two sentences to run concurrently. The appeal is therefore allowed and I would order the two sentences to run concurrent to one another, making a total of only 13 months.