R. v. Vu Ngoc Long and Others

HCMA000594/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 594 OF 1996

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Coram : Hon Stock, J. in Court

Date of hearing : 13 August 1996

Date of judgment : 13 August 1996

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J U D G M E N T

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1. This is an appeal against sentence by three Vietnamese detainees. They had all been detainees in the White Head Detention Centre. Each on different dates had been admitted to the Prince of Wales Hospital, and each had on different dates left the hospital without authority.

2. On 16th November 1995, they had obtained employment at a construction site in Yuen Long. At the time of the offences, they were permitted to sleep at the site overnight. There was on the site an office which was housed in a container and on the night of 23rd November, they were caught by police having entered the office, which they had no authority to enter, and they were in the process of stealing from it and ransacking it. On each of the 1st and 2nd appellants was found a forged refugee card.

3. Each was charged with burglary, to which charge each pleaded not guilty. They were each convicted and sentenced to 18 months imprisonment.

4. Each was charged with escaping from lawful custody, and to that charge each pleaded guilty. The 1st defendant was sentenced to 5 months imprisonment on that charge, the 2nd defendant to 4 months imprisonment on that charge, and the 3rd defendant to 3 months imprisonment.

5. The 1st and 2nd defendants were also charged with possession of forged cards. Both defendants received a term of imprisonment of 6 months for that offence.

6. In the case of each defendant, each of the sentences imposed was ordered to run consecutively. The result was that the 1st defendant was ordered to serve a total of 29 months imprisonment, the 2nd defendant 28 months and the 3rd defendant 21 months.

7. It has not been easy to deal with this appeal because of the approach which the magistrate had used to the totality principle. It seems standard practice by magistrates to give effect to the totality principle, not by passing sentences appropriate to the individual offences and then using the vehicle of concurrent sentences to reduce the overall impact where appropriate, but instead, to reduce particular terms for some of the offences with which a defendant stands convicted. So, for example, in this particular case, the magistrate has said that for the forged card offences, 18 months imprisonment is the tariff. Instead of applying that tariff and reducing it for such mitigating factors as were appropriate, he has reduced it in each case to a term of 6 months imprisonment. It is not possible, therefore, for me to know what he thought the appropriate term was before and after discount for the pleas of guilty in those cases.

8. For the burglary offences, he took a starting point of 2 years imprisonment and reduced that to a term of 18 months to take account of mitigation. Those sentences are unobjectionable and must stand.

9. Each appellant has previous convictions; the 1st defendant for uttering a forged document and for escape from a Detention Centre - that was in 1991. He was imprisoned for 6 months and 2 months respectively. The 2nd defendant, in 1992, was sent to prison for 6 months for possession of a forged card; and the 3rd defendant was given a 2 months suspended sentence in 1991 for possession of an offensive weapon. I was a little puzzled as to the basis for the magistrate's distinction in sentencing the 2nd and 3rd defendants for the escape offence. The first attempt, draw to my attention the fact that the 3rd defendant has not previously been convicted of a Vietnamese Detention Centre type offence.

10. As for the forged card offences, the magistrate has used a number of cases as precedent for his starting point of 18 months. Those cases are R. v. Yu Wing Wut, Crim. App. No.346 of 1984, R. v. Wong Kwai Pui, Mag. App. No.796 of 1987 and R. v. Weng En Xing, Mag. App. No.409 of 1990. Those are cases concerning forged passports and the analogy is not strictly appropriate. These cards are not travel documents and questions of comity of nations, addressed in the case of Yu Wing Wut do not arise. Nevertheless, the use of forged cards is a serious offence and in this particular instance, were evidence of a status to which the applicants were not entitled. That has practical ramifications insofar as those with genuine refugee cards are entitled to take employment, and those without are not. Whilst the starting point of 18 months was slightly too high, the result of 6 months for each forged document offence was certainly not. The sentences imposed by the magistrate for the escape offences were also in my judgment unobjectionable. Each offence committed by each appellant was a separate offence which in principle merited consecutive sentences and, in the circumstances of this case, the totality reached in respect of each appellant, was not too high. Accordingly, the appeals against sentence, in the case of each appellant, are dismissed.

Representation:

Mr Tam Sze Lok, C.C., for Crown

1st Appellant, Vu Ngoc Long, in person

2nd Appellant, Tran Van Son, in person

3rd Appellant, Pham Van Thinh, in person