HKSAR v. VU THI KIM OANH

DCCC 851/2025

[2025] HKDC 1905

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 851 OF 2025

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REASONS FOR SENTENCE

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Introduction

1.  The defendant appeared before me facing the following charges:

(1)  Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to section 38(1)(b)  of the Immigration Ordinance, Cap 115 (“Charge 1”);

(2)  Using a forged identity card, contrary to section 7A(1)  of the Registration of Persons Ordinance, Cap 177 (“Charge 2”);

(3)  Taking employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully, contrary to sections 38AA(1)(a)  and 38AA(2)  of the Immigration Ordinance, Cap 115 (“Charge 3”); and

(4)  Breach of deportation order, contrary to section 43(1)(a)  of the Immigration Ordinance, Cap 115 (“Charge 4”).

2.  The defendant pleaded guilty to all the charges she faced and admitted the facts presented by the Prosecution.

The Facts Admitted

3.  On 9 March 2010, a deportation order was issued against the defendant prohibiting her from entering Hong Kong. The defendant left Hong Kong for Hanoi, Vietnam on 12 April 2010.

4.  On 17 December 2024, the defendant approached Mr Yip, the proprietor of “Yat Fai Restaurant” in Sai Kung, Hong Kong (“the Restaurant”), seeking employment as an odd-job worker. She presented a forged Hong Kong Identity Card under a false name and was hired at HK$72 per hour, starting work on 18 December 2024 and worked each day from 10:30 am to 5:30 pm.

5.  On 20 December 2024, PC28352 saw the defendant, wearing an apron and rain boots, deposing garbage at the back alley next to the Restaurant. PC28352 intercepted the defendant. She admitted arriving illegally in Hong Kong by boat from Shenzhen on 14 December 2024 and stated the Hong Kong Identity Card was bought in Vietnam. PC28352 then arrested and cautioned her.

6.  In a subsequent cautioned interview, the defendant admitted to entering Hong Kong illegally by boat from Shenzhen on 14 December 2024, having paid HK$20,000 for the journey and purchasing the forged Hong Kong Identity Card in Vietnam for RMB 300 to secure employment. She knew that she was not permitted to enter Hong Kong, and stated that the apron and rain boots she wore were provided by the Restaurant.

7.  The Hong Kong Identity Card was confirmed to be forged.

Background and Criminal Record

8.  The defendant is currently 55 years old and holds Vietnamese citizenship. Prior to her arrival in Hong Kong, she resided in Vietnam with her elderly parents. Following the death of her husband in 2013, the defendant became the sole financial provider for her family. In Vietnam, she was previously employed as a farm worker but had recently become unemployed.

9.  The defendant has been before the Court on one occasion with two convictions. One was for “unlawfully remaining,” which is similar to Charge 1, and the other was for a “theft” offence, resulting in sentences of 15 months and 2 months’ imprisonment, respectively.

Mitigation

10.  Mr Davies, Counsel for the defendant, has provided me with his written submission for mitigation. In mitigation, it was said that the case cannot be said to be the most serious of its kind, as the defendant did not come to Hong Kong to be involved in any criminal activity except for taking up employment illegally. The work she did was menial and modestly paid and she only worked in the Restaurant for a short period of time.  Mr Davies told the court that it is unlikely to have impacted on local job opportunities, resulting in minimal harm.

11.  It was said that financial hardship, unemployment, and family responsibilities in Vietnam led the defendant to enter Hong Kong illegally to earn money. She has only two previous convictions, both of which were committed 15 years before the present offences. Upon arrest, the defendant cooperated fully with authorities, admitted her guilt, and showed clear remorse.

12.  In mitigation, Mr Davies urged the Court to consider that all the charges stem from the same incident and suggested that the sentences should be served concurrently. He referred the court to the following authorities for my consideration: HKSAR v Tran Viet Thanh [2012] 1 HKLRD 903; and HKSAR v Nguyen Thi Phu [2012] 1 HKLRD 903.

13.  Nonetheless, I observe that the authorities cited by Mr Davies do not support his submission that the sentences for all four charges ought to be served concurrently.When asked for clarification, Mr Davies explained that he was inviting the court to impose concurrent sentences for the first three charges only, rather than for all of the charges.

Sentencing Considerations

Unlawful remaining in Hong Kong – Charge 1

14.  On the charge of unlawfully remaining in Hong Kong, the normal sentence would be for a first offender 15 months after plea if no humanitarian mitigating factors exist, referring to the authority of R v So Man King [1989] 1 HKLR 142. If an offender repeats this offence, a higher sentence would be appropriate to serve as a deterrent.

15.  After considering all factors, including mitigation, I find no sufficient reason to depart from the established sentencing tariff. Since this is the defendant’s second commission of the offence, a starting point of 24 months’ imprisonment is adopted. This sentence is reduced by one-third due to the defendant’s guilty plea, resulting in a total of 16 months’ imprisonment for Charge 1.

Using a forged identity card – Charge 2

16.  In HKSAR v Li Chang Li [2004-2005] HKCLRT 193, the Court of Appeal held that where an offender has used a forged identity card to conceal their identity, work illegally, or unlawfully extend their stay in Hong Kong, a sentence of 15 months’ imprisonment on a guilty plea will generally be imposed. This corresponds to a starting point of 22 and a half months’ imprisonment before considering any reduction for a guilty plea.   See also HKSAR v Tran Viet Thanh [2012] 1 HKLRD 903.  

17.  I note that this is the defendant’s first offence for using a forged identity card. Therefore, I adopt a starting point of 22 and a half months’ imprisonment and reduce that by one-third to reflect her guilty plea. She is therefore sentenced to 15 months’ imprisonment on Charge 2.

Section 38AA offence – Charge 3

18.  In HKSAR v Usman Butt [2010] 5 HKLRD 452, the Court of Appeal established a tariff of 15 months’ imprisonment following a guilty plea, indicating a starting point of 22 and a half months’ imprisonment prior to plea for offences under Section 38AA. The principal rationale for this sentencing approach is deterrence.

19.  Therefore, the appropriate starting point for this charge is 22 and a half months’ imprisonment.  After deducting the customary one-third discount for plea, the sentence on Charge 3 is 15 months’ imprisonment. 

Breach of deportation order – Charge 4

20.  Breaches of Deportation Orders are regarded as very serious by the court.  To enter Hong Kong in defiance of such an order is a separate and distinct offence from illegal entry and the criminality is greater.  In HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762, the offence of breach of deportation order was considered more serious than unlawfully remaining in Hong Kong. Deputy Judge McMahon, as he then was, said that a sentence of 18 months’ imprisonment after plea for such an offence cannot be criticized since it is a deliberate circumvention of an order directed at the offender personally. 

21.  In HKSAR v Gabriel Malou Lantin HCMA716/2004, Beeson J said that the authorities indicate that for a first offence of breach of a deportation order, a starting point of 27 months would be appropriate. 

22.  Coming back to the present case, this is the Defendant’s first offence for breach of deportation order.  I see no particular reason to depart from the above sentencing tariff.  After deduction for plea of guilty, the sentence on Charge 4 is 18 months’ imprisonment.

Totality

23.  With regard to the totality of the sentences imposed upon the defendant, I refer myself to the authority of Tran Viet Thanh and Nguyen Thi Phu.

24.  In Tran Viet Thanh, the Court of Appeal, in paragraphs 24 to 27 of its judgment, reviewed sentencing for multiple offences. The appellant was sentenced to 15 months’ imprisonment for possession of a forged identity card; this sentence was not enhanced due to a prior conviction, as the sentence for unlawfully remaining (18 months)  had already been increased and both sentences were ordered to run concurrently. Regarding possession of false instruments, an eight-month term was imposed, with two months to be served consecutively owing to the different nature of the offence. A previous breach of deportation resulted in a 20-month sentence, of which five months were to be served consecutively. The aggregate sentence imposed was 25 months’ imprisonment.

25.  In Nguyen Thi Phu, the Court of Appeal upheld a 15-month sentence for possessing a forged identity card. The 15-month sentence for unlawfully remaining was increased to 18 months due to prior convictions; both sentences were to be served concurrently. For breaching a deportation order, a 20-month sentence was imposed, with four months to be served consecutively, resulting in a total of 22 months’ imprisonment.  

26.  The Court of Appeal in Tran Viet Thanh considered whether concurrent or consecutive sentences should be imposed for using a forged identity card and unlawful remaining. The court stated that, unless there are exceptional circumstances, offences of possessing a forged identity card and unlawful remaining in Hong Kong are generally sentenced concurrently. The core offence is the unlawful presence, while the forged identity card is mainly used to conceal that status. The standard sentence is 15 months’ imprisonment, which may be increased if the forged document is used to gain benefits, such as seeking employment. Even if the two sentences remain concurrent, the severity of the case can be reflected by adjusting the length of the sentence. Whether to impose consecutive sentences depends on the specific facts of each case, see para 17, 22 and 23 of the judgment.

The sentence imposed

27.  Having considered all the circumstances of the case and the totality principle, and referring to the guidance in Tran Viet Thanh and Nguyen Thi Phu, I impose the following sentences: -

Charge 1 – 16 months’ imprisonment;

Charge 2 – 15 months’ imprisonment to be served concurrently to Charge 1;

Charge 3 – 15 months’ imprisonment to be served concurrently to Charges 1 and 2;

Charge 4 - 18 months’ imprisonment, 4 months to be served consecutively to Charges 1 to 3, making a total of 20 months’ imprisonment for Charges 1 to 4.

28.  The total sentence to be served by the defendant for all four offences is 20 months’ imprisonment.