HKSAR v. Hoang, Thi Phuong

HCMA 396/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 396 OF 2013

(ON APPEAL FROM ESCC 1753 OF 2013)

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J U D G M E N T

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1.This Appellant, a woman in her mid-40s, pleaded guilty in the Magistrates’ Court to two charges. Charge 1 was of remaining without authority after having landed unlawfully, contrary to s.38(1)(b) of the Immigration Ordinance, Cap. 115. Its particulars read:

“HOANG Thi-phuong, you are charged that on the 23^rd day of May 2013, in Hong Kong, you, having landed in Hong Kong unlawfully, did remain in Hong Kong without the authority of the Director of Immigration.”

Charge 2 was of using a forged identity card, contrary to s.7A(1) of the Registration of Persons Ordinance, Cap.117. Its particulars read:

“HOANG Thi-phuong, you are charged that on the 5^th day of November, 2012, at ‘Twins Restaurant’, G/F, No. 21 Kam Chi Path, Wong Tai Sin, Kowloon, in Hong Kong, you did, without lawful authority or reasonable excuse, use a forged Hong Kong Identity Card, namely an identity card bearing number R652419(1) in the name of LAW Yu-chui.”

2.The Brief Facts of the case which the Appellant admitted read as follows:

“1. At about 1500 hours on 2013-05-23, PC 12189 (PW5) and party was patrolling and found a female (later known as Vietnam Female / HOANG Thi-phuong (D)) washing dishes at the rear lane of “Twins Restaurant”, G/F, No. 21 Kam Chi Path, Wong Tai Sin, Kowloon suspiciously. Upon police enquiry, D claimed that she has HKID card in D’s residence in Choi Hung Estate. Male / CHENG Chun-ho (Proprietor of A/L-2, PW1) confirmed that D was employed by PW1 to work at A/L-2 since 2012-11-05 when D had showed a HKID card with Female LAW Yu-chui (PW2)’s HKID Card number R652419(1) and D’s name HOANG Thi-phuong on it.

2. D was then brought to Choi Hung Estate and D surrendered and claimed that she actually has no fixed abode. D was arrested and under further caution, D admitted the Offences (1-2) and claimed that she arrived at Hong Kong illegally on a day in November 2012 (Offence 2) from Vietnam to work and bought a forged HKID card from an unknown male in November 2012. After obtaining the forged HKID card, D used the forged HKID card to show to PW1 to work at A/L-2 (Offence 2) and D disposed the forged HKID card after D was employed. The forged HKID card could not be discovered.

3. D was formally charged with the offences and detained to appear before Court No. 1 of Eastern Court on 2013-05-25 for plea taking.”

3.Three perfected grounds of appeal against sentence have been filed in the Appellant’s behalf. They read as follows:

“1. The learned Magistrate erred in principle in ordering the sentences to be served wholly consecutively, in that, the learned Magistrate:

a. failed to take into account the fact that the two offences arose out of the same facts;

b. failed to take into account the fact that the two offences were inter-connected; and

c. doubly punished the appellant.

2. The learned Magistrate erred in principle when applying totality principle, in that, the learned Magistrate:

a. in concluding that the two offences should be served consecutively, failed to further consider the totality principle;

b. failed to evaluate the totality of the Appellant’s criminality against the totality of the sentence; and

c. passed a total sentence the severity of which is disproportionate to the Appellant’s criminally.

3. The ultimate sentence is manifestly excessive.”

4.The Magistrate’s reasons for making the sentences wholly consecutive appear in para. 7 of her Reasons for Sentence where she says:

“Since there is no other mitigation factor apart from the Defendant’s guilty plea, the sentence for charge 1 is 15 months’ imprisonment and the sentence for charge 2 is also 15 months’ imprisonment. Taking into account the totality principle, the fact that the two offences are of different nature and were committed at a different period of time, the sentences for the two charges are to be served consecutively. Therefore, the total sentence is 30 months’ imprisonment.”

5.Where the possession of a forged identity card or an identity card belonging to another person is for the purpose of remaining in Hong Kong without authority after having landed unlawfully, wholly concurrent sentences of 15 months’ imprisonment would be appropriate. But where the identity card is used to obtain employment, it would be appropriate to impose a total in excess of 15 months’ imprisonment. An appropriate way in which to achieve such a total would be to pass a sentence of a duration longer than 15 months’ imprisonment for the identity card offence and make it wholly concurrent with a sentence of 15 months’ imprisonment for the offence of remaining without authority after having landed unlawfully.

6.In the present case, the forged identity card was used by the Appellant to obtain employment.

7.All things considered, I regard a total sentence of 18 months’ imprisonment to be appropriate, and I propose to achieve that total in the following way. The sentence of 15 months’ imprisonment for remaining without authority after having landed unlawfully will stand. The sentence for the identity card offence will be increased to 18 months’ imprisonment. The two sentences will be made wholly concurrent.

8.I regard this result as in conformity with the decision of the Court of Appeal case of HKSAR v. Tran Viet Thanh[2012] 12HKLRD903 and do not accept the submissions, made on behalf of the Appellant with a view to obtaining an even greater reduction in sentence, that what the Court said was merely in passing and does not actually establish the level of sentencing.

9.The appeal against sentence is allowed so as to sentence the Appellant in the foregoing way, thus reducing her total sentence from 30 months’ imprisonment to 18 months’ imprisonment.

Ms Sezen Chong, instructed by Rowdget W Young & Co and assigned by the Legal Aid Department, for the appellant

Ms Winnie Mok, of Department of Justice, for the respondent