HKSAR v. Nguyen Thi Lien

HCMA 319/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 319 OF 2014

(ON APPEAL FROM TMCC 1416 OF 2014)

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Before: The Honourable Mrs Justice V Bokhary in Court

Date of Hearing: 7 October 2014

Date of Judgment: 7 October 2014

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J U D G M E N T

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1.This Appellant pleaded guilty in the Magistrates Court to two charges. Charge 1 was of using a forged identity card. Charge 2 was of remaining without authority after having landed unlawfully. On Charge 1 she was sentenced to 15 months’ imprisonment. On Charge 2 she was sentenced also to 5 months’ imprisonment. Because she had used the forged identity card to get employment for which she received remuneration, the Magistrate made 5 months of the sentence on Charge 2 consecutive to the sentence on Charge 1. So her total sentence became one of 20 months’ imprisonment. She now appeals against sentence.

2.It is submitted on her behalf that the use which she made of the forged identity card should have resulted in the length of each sentence being adjusted upwards from 15 months to 18 months and the two being made concurrent so as to give a total of 18 months’ imprisonment.

3.It would have been preferable to deal with the Appellant by way of concurrent sentences, leaving the sentence for remaining without authority after having landed unlawfully at 15 months’ imprisonment and adjusting the sentence for using a forged identity card upwards from 15 months’ imprisonment to reflect the fact that the forged identity card had been used not merely to facilitate remaining unlawfully after having landed unlawfully but had been used to obtain employment.  But ultimately the matter is one of substance rather than of form.  The result of the appeal must depend on whether the total sentence passed by the Magistrate exceeded the range appropriate to the circumstances of the case.  Using the forged identity card, the Appellant obtained employment at the rate of $40 an hour and retained such employment for 10 months.  All things considered, I do not feel able to say that the total sentence passed by the Magistrate exceeded the range appropriate to the circumstances.

4.Accordingly, the appeal is dismissed.

Mr Andy Hung, instructed by the Legal Aid Department, for the appellant

Mr Prakash L Daryanani, of the Department of Justice, for the respondent