HKSAR v. NGUYEN, THI HOA

[English Translation— 英譯本]
HCMA 635/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

Criminal Appeals Jurisdiction

APPEAL AGAINST SENTENCE

CASE NO: MAGISTRACY APPEAL NO635 OF 2014

(ON APPEAL FROM TWCC 2893/2014)

_____________

JUDGMENT

1. The appellant was sentenced to a total of 30 months’[1] immediate imprisonment by a magistrate (Mr. TO Ho-shing) on her own plea of guilty to the following three charges:

Charge (1) “Using a copy of a false instrument”[2];

Charge (2) “Illegal entry”[3];

Charge (3) “Breach of deportation order”[4].

The appellant appealed against the sentence.

The Facts

2. On 24 September 2014, Police together with the Immigration Department and Labour Department went to the restaurant in question for investigation.  The police officer found the appellant washing dishes inside the restaurant. Upon enquiry, the appellant was unable to produce her identification documents whereas the person in charge of the said restaurant produced a photocopy of the Hong Kong identity card of the appellant provided by her on 17 August the same year when she came for a job interview. However, the number and the date of birth shown on the photocopy indicated that the original of it actually belonged to another male who had reported the loss of his ID card to the Immigration Department long ago. The appellant admitted under caution that she sneaked into Hong Kong by sea on 25 July 2014. She bought an identity card at HK$4000 on the boat and the identity card went missing after it had been photocopied. The appellant admitted that she tried to look for jobs with the photocopy of this identity card. After further investigation, the police confirmed that the appellant has been deported as early as in 1998 (Deportation Order No. 598/1998) and the Deportation Order was still valid at the time of the offence.

Background of the appellant and her mitigation

3. In his “Reasons for Sentence”, the magistrate stated that:

“3. With reference to the criminal record of the defendant, it is the third time that she entered Hong Kong illegally, the second time she breached the deportation order and committed the offence involving false instrument.

4. The defendant, aged 43, a housewife, divorced, receiving little education, was living together with her son back in Vietnam. Due to financial reason, she committed the offences this time. She asked the court for leniency and to deal with this case by way of a concurrent sentence as the three offences arose from the same incident.”

Sentencing by the Magistrate

4.  The magistrate then stated:

“5. I have the following considerations:

I. As to Charge one, under caution, the defendant expressed clearly that she knew the identity card in question could not be a real instrument, but she still used the photocopy of such instrument to look for jobs in Hong Kong. The Court of Appeal has clear sentencing guidelines for this type of cases. (Refer to Li Chang-li [2005] HKLRD 864, HKSAR v Zhang Minghua HCMA547/2006). I find that such considerations also apply to this case. Even though the defendant pleaded guilty, she still needs to be sentenced to 15 months’ imprisonment.

II. As to Charge two, it is already the third time that the defendant entered Hong Kong illegally. Sentenced to 18 months’ imprisonment. (Refer to R v. Nguyen van Doon and Ors [1997] 3 HKC 594, R v So Man-king and Ors [1989] 1 HKLR 142).

III. As to Charge three, it is the second time that the defendant committed this count of breach of deportation order. The appeal court pointed out that 30 months’ imprisonment should be adopted as the starting point. (Refer to HKSAR v Gabriel Malou Lantin HCMA 716/2004). Taking all factors in this case into account, I find that the suitable starting point should be 24 months’ imprisonment. As the defendant pleaded guilty, she is entitled to one third discount. Therefore, the defendant is sentenced to 16 months’ imprisonment.

6. For the charges in contrary to the Immigration Ordinance, the sentence normally should be consecutive to the sentences of the other charges, in particular, Charge 2 and Charge 3 in this case.  The appeal court specifically stated that they should run consecutively.  (Refer to HKSAR v Pham Ngoc Hue [2002] 2 HKC 542).

7.  In sentencing, I have taken the totality principle into account. I find that as to Charge 1 of the defendant, 6 months out of 15 months’ imprisonment should run consecutively to the 18 months’ in Charge 2. The sentence for the 2 charges is 24 months. At the same time, 6 months out of 16 months in Charge 3 should run consecutively to the 24 months’ imprisonment of Charge 1 and 2. Therefore, the total sentence for the 3 charges is 30 months.

8.  The defendant is sentenced to 30 months’ imprisonment.”

Grounds of Appeal

5.  The appellant has no dispute towards the sentence of each charge.

6. The complaint of the appellant is that the total sentence for this case was excessive.  Her grounds are as follows:

(I)  Part of the sentence (6 months) in Charge (1) had to be served consecutively to the sentence in Charge (2), which departed from the principle laid down by the case (HKSAR v Tran Viet Thanh [2012] 1 HKLRD 903).

(II)  Part of the sentence (6 months) in Charge (3) had to be served consecutively to the total sentence (24 months) of Charge (1) and (2), which departed from the principle laid down by the case (HKSAR v Bui Van Kai [2013] 2 HKLRD 471).

(III)  The facts of this case were not unusual; instead it was typical in similar cases. That the magistrate adopted 45 months as the starting point for the overall sentence was manifestly excessive.

Discussion

Case Law

7. In the case of Tran Viet Thanh, the appeal court stated that unless there were unusual circumstances, the sentence for the offence of “Possession (or using) of a false identity card” should run concurrently with the sentence for “Illegal entry”. This was because the core feature of both offences was related to the defendant’s illegal stay in Hong Kong.

8.  In the case of Bui Van Khai, the appeal court stated that the sentence for “Breach of deportation order” should run concurrently with the sentence for “Illegal entry” because the two offences in fact were inseparable. That means, once the defendant set her foot on Hong Kong, she would commit these two offences simultaneously. The appeal court once again affirmed this principle in another case: HKSAR v Ta Dinh Son CACC 348/2013 (Date of sentence: 9 January 2014; not reported).

9. The above three cases do not appear in the “Reasons for Sentence” of the trial magistrate. This court has a reason to believe that the magistrate has not taken the above three cases into his consideration. In deciding whether the sentences of Charge (2) and Charge (3) should run consecutively, the magistrate quoted the case of Pham Ngoc Hue, a magistracy appeal case. However, this case can be regarded as outdated and non-binding.

10. It is wrong for the magistrate to order part of the sentences of Charge (1) and part of that of Charge (2) to run consecutively. It is also wrong for him to order part of the sentences of Charge (2) and part of that of Charge (3) to run consecutively.

11. As the magistrate was not aware of the Ta Dinh Son case, his sentence for Charge (3) was also problematic. In that case, after reviewing a number of authorities, the appeal court agreed that regarding the sentence for “Breach of deportation order”, the court normally should adopt 27 months as the starting point after trial. Stock, V.P. (as he then was) further pointed out that as the statutory maximum sentence for that offence is 7 years’ imprisonment, the sentence imposed on a re-offender should be enhanced each time without maximum limit depending only on the facts of the case.

12. It was already the second time that the appellant in this case committed the offence of “Breach of deportation order”, adopting 24 months as the starting point for Charge (3) was manifestly inadequate. The appropriate starting point should be 30 months. The appellant pleaded guilty and was entitled to one third discount. Therefore, the sentence is reduced to 20 months.

Application to this case

13. As I have mentioned above, it is wrong for the magistrate to order part of the sentences for Charge (1) and Charge (2) and part of the sentences for Charge (2) and Charge (3) to run consecutively. The question is: should all the sentences for the three charges run concurrently?

14. The respondent submitted that they “should not”.  The reason is that it will be unfair to the type of defendants who has only committed the offences of “Illegal entry” and “Breach of deportation order”.  It means that the statutory sentence for “Breach of deportation order” is the highest among the three and the actual sentence for it is also the highest. Therefore, if the sentences are to run concurrently, a defendant who has only committed “Illegal entry” and “Breach of deportation order” will definitely receive the same sentence as that of a defendant who has also committed the offence of “False identity card” for short. In other words, a person who has not possessed or used a false identity card or its copy has to receive the same punishment as that of a person who has possessed or used a false identity card or its copy.

15. I find that the respondent’s analysis has its point. Besides, according to the case of So Man King, if a defendant who has committed the offence of “Illegal entry” is also found to have used others’ or false identity card, then the sentence for “Illegal entry” may be enhanced. In effect, part of the sentences is made to run consecutively if a charge is also laid for the identity card offence.

16. Under the circumstances that the three offences, namely “False identity card”, “Illegal entry” and “Breach of deportation order” have been committed at the same time, I find that the court may certainly exercise its discretion to order part of the sentence for the first type of offence to run consecutively to the sentences for the second and the third types of offence, while the sentences for the latter two types should be ordered to run concurrently. However the range cannot be too wide; otherwise it will contradict the spirit behind the cases.

Judgment

17. The appellant’s appeal is allowed. The sentences concerned are altered as follows:

·  The sentence (18 months) for Charge (2) stands.

·  The sentence for Charge (3) is altered to 20 months and is to serve concurrently with the sentence for Charge (2).

·  The sentence (15 months) for Charge (1) stands. 2 months of it are to serve consecutively to the total sentences of Charges (2) and (3).

·  The total sentence for the three offences is 22 months.