HKSAR v. Pham Thi Quyen

DCCC 733/2021

[2022] HKDC 148

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 733 OF 2021

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REASONS FOR SENTENCE

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1.The defendant, a Form 8 holder from Vietnam, pleads guilty to four charges of conspiracy to transfer a forged identity card, contrary to section 7AA(1)(b)  of the Registration of Persons Ordinance[1]and sections 159A and 159C of the Crimes Ordinance[2] (charges 1-4)  and one charge of possession of false instruments, contrary to section 75(2)  of the Crimes Ordinance.

2.Full particulars of the offences are set out in the summary of facts dated 9 September 2021 admitted by the defendant today.  In summary at around 0041 hours on 25 February 2021 the police intercepted the defendant who was acting furtively at the junction of Nam Cheong Street and Tung Chau Street in Sham Shui Po. 

3.Upon a body search the police found tucked into the waistband of the defendant’s trousers four red packets containing four forged identity cards in the names of Chan Wai Lun, Zhan Yi Wei, Le Thi Binh and Mao Chien Ky and two false construction industry safety training certificates and two false construction workers registration cards in the names of Mao Chien Ky and Wong Chi Kan. 

4.The defendant was also found in possession of two mobile phones.  The defendant consented to one of the mobile phones being examined.  A total of fifty-six photographs dated between 7 November 2020 and 17 February 2021 were found on the mobile phone.   

5.The photographs included images of fifty-eight suspected forged identity cards, two suspected forged construction industry safety training certificates and two suspected forged construction workers registration cards including the forged identity card, construction industry safety training certificate and construction workers registration card in the name of Mao Chien Ky. 

6.Under caution and in a video recorded interview the defendant admitted, inter alia, that she knew that the identity cards, construction industry safety training certificates and construction workers registration cards found on her were forged and claimed that she met a woman in a park who asked her to deliver the cards for a reward of $100 per transaction; she was only a courier; she had worked for over three months, acting as a courier for five to seven times and that she wanted to earn money for her infant daughter. 

Mitigation

7.In passing sentence, I have carefully considered the oral and written submissions of Ms Kong, including that the defendant who was heavily in debt in Vietnam came to Hong Kong illegally in August 2019 and gave birth to a daughter in April 2020 who is now being raised in prison[3].

8.I take into account the defendant has four other children in Vietnam.  Ms Kong explains that the defendant was unable to make ends meet and took up the ‘job’ which she understood as delivery in nature[4].

Conspiracy to transfer a forged identity card - charges 1-4

9.Ms Kong refers the court to the Reasons for Sentence in HKSAR v Hon Yin Sang & others where a starting point of 27 months’ imprisonment was adopted for each of three charges of conspiracy to use a forged identity card[5]. 

10.The role of D1 in that case, who was an overstayer and who the sentencing judge described as a member of an international forged identity card group, was to pass the forged identity cards to D2, D3 and D4 and accompany them to find a job in Hong Kong.   

11.D1 pleaded guilty and was sentenced to 18 months’ imprisonment on each charge and to a total sentence of 20 months’ imprisonment.  In my view a total sentence of 20 months’ imprisonment was lenient and did not adequately reflect D1’s role in an international syndicate involved in the use of forged identity cards to obtain employment. 

12.In HKSAR v Baljit Singh the Court of Appeal confirmed a starting point of 3 years and 6 months’ imprisonment for conspiracy to make false instruments.  The appellant played the role of a courier,  forwarding the photographs and personal particulars of non-refoulement claimants who wanted forged identity cards and to collect the forged identity cards after they had been made in China[6]. 

13.I agree with the comments of the sentencing judge including that the offences damaged the integrity of the identity card system whereby persons use forged identity cards for illegal purposes, such as taking up employment thereby depriving local workers of employment[7].

14.This echoes similar sentiments expressed by the Court of Appeal in HKSAR v Chan Yip Chi that the use of forged identity documents is serious and takes away job opportunities of local residents thus creating serious social and economic problems[8].

15.In HKSAR v Chan Yip Chi the applicant was in the business of supplying false instruments, namely an “Acknowledgement of Application for a Hong Kong Permanent Identity Card”, commonly known as a “Temporary Identity Card”.  The false instruments would be used by visitors, who otherwise would not be entitled to seek employment. The Court of Appeal held that a starting point of 3 years and 6 months’ imprisonment was appropriate for each of two offences of possession of a false instrument.

16.Whilst making false instruments is more serious than using or transferring a false instrument and attracts a higher maximum sentence, the role of the defendant in the conspiracy in HKSAR v Baljit Singh was that of a courier and not the maker of the false instruments.   

17.In the present case the four conspiracies concern four different forged identity cards together with false construction industry safety training certificates and construction workers registration cards, which clearly were to be used to obtain employment. 

18.The images of fifty-eight identity cards retrieved from the defendant’s mobile phone indicate a much larger involvement than claimed by the defendant in the video recorded interview.  Whilst I have my reservations the role of the defendant was simply that of a courier, I nevertheless proceed on the basis the defendant was a courier.  In the circumstances I am satisfied a starting point of 3 years and 3 months’ imprisonment is appropriate on each of charges 1-4 and 1 year and 6 months’ imprisonment on charge 5.  

Commission of offences by refugees or torture claimants

19.The defendant is a Form 8 recognizance holder.  The commission of offences by refugees or torture claimants is capable of aggravating sentence where the offence affects the community at large and has a significant impact on Hong Kong’s reputation for order and security. 

20.In HKSAR v Baljit Singh the Court of Appeal upheld the enhancement of the starting point by 3 months by reason of the defendant’s immigration status[9].

21.I am satisfied offences involving forged identity cards and construction industry cards affect the community at large and have a significant impact on Hong Kong’s reputation for order and security.  By reason of the defendant’s Form 8 status I enhance the starting points for each charge by 3 months to 3 years and 6 months’ imprisonment for charges 1-4 and 1 year and 9 months’ imprisonment for charge 5.      

22.Giving the defendant full credit for her pleas of guilty reduces the sentence on charges 1-4 to 2 years and 4 months’ imprisonment and on charge 5 to 1 year and 2 months’ imprisonment. 

Totality

23.Although charged as four separate conspiracies and an additional charge of possession of false instruments, I am satisfied concurrent sentences are appropriate. 

24.The defendant is convicted and sentenced to concurrent sentences of 2 years and 4 months’ imprisonment on each of charges 1-4 and 1 year and 2 months’ imprisonment on charge 5. 

Suspended sentence

25.On 8 January 2020 the defendant was sentenced in the Kowloon City Magistracy to 2 weeks’ imprisonment suspended for 12 months for an offence of theft[10]. The present offences committed between 7 November 2020 and 25 February 2021 were committed during the operational period of the suspended sentence. 

26.Notwithstanding the different nature of the offence I am satisfied there are no exceptional circumstances whereby it would be unjust to activate the suspended sentence with the original term unaltered.  Considering totality of sentence, I am satisfied that it would be just to activate the suspended sentence consecutive making a total sentence to be served by the defendant of 2 years and 4 months and 2 weeks’ imprisonment.