HKSAR v. Dao Thi Bich Lien

DCCC40/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 40 OF 2011

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Reasons for Sentence

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1.The defendant pleaded guilty to two various counts of immigration offences, namely, unlawful remaining and breach of deportation order, together with one count of possession of a forged ID card, contrary to 7A(1) of Cap.177.

Brief facts

2.On 26 November 2010, a party of police officers conducted an anti-crime operation in Sham Shui Po area.  The defendant was located in Room D on 3rd Floor of the building situated at No. 412 Un Chau Street.  Upon identification check, the defendant failed to provide any proof of identity.  The police found a forged Hong Kong Identity Card No. R182041(8) in the name of Vu Thi Hong Ha with the defendant’s photo affixed thereon.  Upon enquiry, the defendant said that she bought the forged ID card for $500 in Central.

3.With the assistance of a Vietnamese interpreter, the  defendant admitted under caution, inter alia, that she bought the said forged ID card in Central for $500.  She intended to use the forged ID card to get a job.  She claimed that her real name is Dao Thi Bich Lien.  Further investigation revealed that the defendant is the subject of a deportation order No.IMM CR 101/2004 issued on 15 March 2004.  Upon examination by government chemist, the said ID card was confirmed to be a forged Hong Kong ID card. 

Mitigation

4.The defendant was born in July 1970 in Vietnam and is now aged 40.  She studied up till Grade 10 in Vietnam.  She has to take care of her mother who is suffering from a prolonged illness.  When asked, defence lawyer took instruction from the defendant who informed the court that she borrowed money from her neighbours and paid $5,000 to sneak into Hong Kong by train via Mainland China.  She denied that there was any involvement of a syndicate.  She claimed that she came to Hong Kong in mid November 2010 this time.  She had money to spend for a few days in Hong Kong before her arrest. She denied that the premises where she was located was a brothel.  The case HKSAR v Vu Thi Tu, HCMA1048/2001, was referred to.

Sentence

5.The defendant had been deported from Hong Kong in March 2004.  She was found stayed in Hong Kong in November 2010 although there was no evidence to suggest when did she come to Hong Kong.  She said it was in mid November 2010 that she paid $5,000 to sneak into Hong Kong from the mainland by train.  She denied any assistance from any member of syndicate and yet she was able to obtain a tailor-made forged ID card with her photo affixed thereon allegedly for $500 in Central, Hong Kong.  She was also able to have a place to live in shortly after her arrival. 

6.It is noted that the defendant was last discharged on 19 June 2009 and was deported back to Vietnam right away.  She had 3 similar convictions of unlawful remaining in 2003, 2006 and 2008, and 2 similar convictions of breaching a deportation order back in 2006 and 2008.  She also had 3 convictions of theft.

7.Apparently, the defendant would try every means to come to Hong Kong to make money.  I have reservations as to her claim that there was no involvement of syndicate, but at this stage and for the present purpose, there was no evidence to suggest so. 

8.From the copy of the forged ID card, I note that the quality of the forged ID card in the name of Vu Thi Hong Ha with defendant’s photo affixed thereon is quite good.  The fact that the defendant is a repeated offender is an aggravating feature that justifies a heavier sentence.  In fact, that has been shown in her previous similar sentences. 

9.I have considered the cases, HKSAR v Vu Thi Tu, HCMA 1048/2001, and HKSAR v Vu Dinh Phong, HCMA 1091/2000.

10.Taking all circumstances into consideration, I sentence the defendant as follows:

11.Charge 1 of unlawful remaining, starting point of 21 months and with her plea, it is reduced to 14 months.

12.Charge 2 of possession of forged ID card, the defendant indicated that she intended to use the forged ID card for employment. I would adopt a starting point of 12 months, and with plea, the sentence is reduced to 8 months.  This sentence is to serve consecutively to the first sentence, making it a total of 22 months.

13.Charge 3 of breaching a deportation order, that was the defendant’s second deportation order.  It was said in HKSAR v Do Thi Hue, HCMA873/2001, that a breach of deportation order is an offence more serious than that of unlawful remaining or landing.  I would adopt a starting of 24 months and, with plea, reduce it to 16 months.  In light of the totality principle, I order that 12 months of the last sentence is to run consecutive to the previous sentences, making it a total sentence of 34 months.