HKSAR v. Nguyen Thi Phu

DCCC407/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 407 OF 2011

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Reasons for Sentence

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1.The defendant has pleaded guilty to three offences, that is the possession of a forged identity card, remaining in Hong Kong without the authority of the Director of Immigration and breach of a deportation order.

2.The defendant has admitted the facts of the case and I convicted her.  

3.The Summary of Facts show she was intercepted on 19 March this year in Sham Shui Po.  When asked for her identity, she took out a Hong Kong Identity Card which in fact was forged.  When she was asked about it, she said that she had purchased the identity document from Shenzhen before entering Hong Kong unlawfully.

4.On 11 August the year, before 2010, a deportation order had been made as against the defendant.  By her return to Hong Kong, she of course breached that order.  She said that she had entered Hong Kong unlawfully on 17 March 2011 by boat, and she was looking for a job.  She had returned to Hong Kong because her living environment was poor.

5.The defendant had previously been in Hong Kong.  On 23 January 2010, she had been convicted of using a forged Hong Kong Identity Card and remaining in Hong Kong.  She received 12 month imprisonment sentences on each charge, to be served concurrently. 

6.Her antecedents showed that she is aged 44, she had received education up to junior secondary level in Vietnam.  She was unemployed. She was discharged from Lo Wu prison on 21 September 2010. 

7.I am told by her counsel that she has five children, three of them grown up and married, she has a daughter and son who are still studying, and she has in the past been a hawker.  She is remorseful and her family situation was difficult because her previous husband had taken all the family money and she had come to Hong Kong to try to maintain her family.

8.In sentencing I was referred to a case before Judge Geiser on 17 September 2009, where the defendant, facing charges of illegal remaining under a breach of deportation order, the judge in that case had ordered the sentences to be served concurrently because they were both Immigration offences or arose out of the same incident.       

9.In sentencing the defendant, I bear in mind that this is the first time she been convicted of breach of a deportation order. This is not the first time that she has been convicted of the first two offences, which is possession or use of a forged identity card and remaining in Hong Kong.

10.The normal sentence for that offence after a plea of guilty is 15 months’ imprisonment.  On the previous occasion in 2010, she received sentences of 12 months’ imprisonment, and normally on a second or subsequent conviction, sentences could range as high as 18 months on a plea of guilty. 

11.As the defendant was sentenced to a lower initial sentence of 12 months in 2010, I considered that on this occasion in respect of the 1st and 2nd offences I should impose a sentence of 15 months’ imprisonment after a plea of guilty.

12.This 15 months’ imprisonment takes into account her plea of guilty and is reduced by one-third for that reason.  So on the 1st charge and on the 2nd charge I will impose sentences of 15 months’ imprisonment, to be served concurrently one to another.

13.On the 3rd charge, breach of deportation order, on a first offence a starting point of 27 months’ imprisonment can be taken.  I shall take that starting point and reduce the sentence by one-third to take account of her plea of guilty.  There will be a sentence of 18 months’ imprisonment on that charge.

14.I have been effectively asked to run all the sentences concurrently.  However, I take into account that the defendant in this case has in the past, in 2010, used a forged identity card and in 2011 was in possession of a forged identity card.  I do not think it would be appropriate to run the 3rd charge completely concurrently to the first two charges.

15.What I shall order is that 12 months of the 3rd charge will run consecutively to the 1st and 2nd charges and 6 months concurrently.  That will give an overall sentence of 27 months’ imprisonment, and that will be the total.  Of the 3rd charge, 12 months will run consecutively, 6 months will run concurrently for the 1st and 2nd charges, to give an overall sentence of 27 months’ imprisonment.

Please refer to CACC221/2011 for the relevant appeal(s) to the Court of Appeal.