A A
B B
DCCC 504/2013
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 504 OF 2013 D
____________
E HKSAR E
v
F F
NGUYEN Manh Tro
G ____________ G
H Before: HH Judge Dufton H
Date: 5 July 2013
I Present: Ms Lisa Go, PP, of the Department of Justice, for HKSAR. I
Mr Chan Chi Shing of C.S. Chan & Co
J assigned by the Director of Legal Aid, for the Defendant. J
Offences: (1) Remaining in Hong Kong without the authority of the
K Director of Immigration after having landed unlawfully in K
Hong Kong
L (在香港非法入境後未得入境事務處處長授權而留在香港) L
(2) Possession of a forged identity card (管有偽造身分證)
M (3) Possessing false instruments (管有虛假文書) M
(4) Breach of Deportation Order (違反遞解離境令)
N N
REASONS FOR SENTENCE
O O
1. The defendant pleads guilty to one charge of remaining in Hong
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Kong without authority having landed unlawfully, contrary to section
Q 38(1)(b) of the Immigration Ordinance, Chapter 115 (charge 1); one Q
charge of possession of a forged identity card, contrary to section 7A(1)
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of the Registration of Persons Ordinance, Chapter 177 (charge 2); one
S charge of possessing false instruments, contrary to section 75(1) of the S
Crimes Ordinance, Chapter 200 (charge 3); and one charge of breach of
T T
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A A
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deportation order, contrary to section 43(1)(a) of the Immigration
C Ordinance (charge 4). C
D D
2. In summary at about 5.25 p.m. on the 4 April this year the police
E intercepted the defendant on the 6th floor staircase of No. 44 Tung Choi E
Street in Mongkok and asked for proof of his identity. The defendant
F F
produced an expired Vietnamese passport. The defendant was then
G searched and in his wallet the police found three forged documents, G
namely a Hong Kong identity card, a Construction Industry Safety
H H
Training Certificate and a Construction Workers Registration Card all in
I the name of Nguyen Van Chung. I
J J
3. The defendant was arrested and under caution admitted he was an
K illegal immigrant having come to Hong Kong on the 20 January this year K
by speedboat. The defendant said he paid $6,000 to arrange to come to
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Hong Kong and for the forged documents which he intended to use to
M obtain employment. M
N N
4. Enquiries revealed the defendant was subject to a deportation
O order dated 30 December 2003, prohibiting him from entering Hong O
Kong for life. The defendant was last deported on the 5 November 2007,
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also in breach of the same deportation order
Q Q
5. In passing sentence I have carefully considered everything said
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on behalf of the defendant by Mr Chan, including that the defendant has
S two young children to look after and that he wishes to return to Vietnam S
as soon as possible and promises never to return to Hong Kong.
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A A
B B
Unlawful remaining
C C
6. In R v. So Man King [1989] 1 HKLR 142 the Court of Appeal
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held that allowing for a plea of guilty a sentence of 15 months
E imprisonment should be used as the basic guideline unless there are E
strong humanitarian considerations to depart there from. The Court of
F F
Appeal further held that a court should take into account, by upward
G adjustment, any previous unlawful entry. G
H H
Possession of a forged identity card
I I
7. In HKSAR v Li Chang Li [2005] 1 HKLRD 864 the Court of
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Appeal said the sentence on a plea of guilty for possession should be 12
K months imprisonment, irrespective of whether the offender was lawfully K
staying in Hong Kong. However the courts have emphasised that the
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underlining criminality of an illegal immigrant in possession of a forged
M identity card is his unlawful presence in Hong Kong (see for example M
HKSAR v Tran Viet Thanh [2012] 1 HKLRD 903).
N N
O Possession of false documents O
P P
8. There are no guidelines for possession of forged construction
Q industry cards. In HKSAR v Tran Viet Thanh the Court of Appeal Q
approved a starting point of 12 months. The appellant in that case was
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also sentenced for illegally remaining, possession of a forged identity
S card and breach of a deportation order. The Court of Appeal said that the S
possession of false instruments was different in nature to the other
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charges and therefore ordered two months to be served consecutively.
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A A
B B
Breach of deportation order
C C
9. There are also no guideline sentences for breach of deportation
D D
order. The maximum sentence for unlawful remaining is 3 years
E imprisonment, whereas the maximum sentence for breach of deportation E
order is 7 years imprisonment. The courts have therefore viewed the
F F
offence as more serious than that of unlawful remaining and have upheld
G sentences of 18 months imprisonment after plea (see for example HKSAR G
v Nguyen Chi Trung HCMA 1095/2001 as applied in HKSAR v Cortez
H H
Emily Bisoy [2002] 2 HKLRD 762). Again a court should take into
I account, by upward adjustment, any previous breach. I
J J
10. In HKSAR v Pham Van Tuan CACC 272/2010 the Court of
K Appeal accepting that the offence of unlawful remaining is made more K
serious when there was a deportation order said that the underlying
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criminality for the two offences is the same, namely the defendant’s
M unlawful presence in Hong Kong. The defendant in that case had three M
previous convictions for unlawful remaining and one for breach of a
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deportation order. The court held that a total sentence of 23 months
O imprisonment after plea was appropriate. This was achieved by ordering O
3 months on the breach of a deportation order to be served consecutively
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to the sentence for unlawful remaining.
Q Q
11. In HKSAR v Bui Van Khai CACC 175/2012 where the defendant
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had two previous convictions for unlawful remaining and one for breach
S of a deportation order the Court of Appeal said that an overall sentence of S
2 years imprisonment was a proper one after plea. In HKSAR v Tran Viet
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Thanh where the defendant also possessed the false instruments the Court
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of Appeal said a total sentence of 25 months was appropriate, the
C defendant also having two previous convictions for unlawful remaining C
and one for breach of a deportation order.
D D
E 12. The defendant having one previous conviction for unlawful E
remaining; two for possession of a forged identity card; one for
F F
possession of a false instrument and one for breach of a deportation order,
G I am satisfied the proper starting point after trial for unlawful remaining G
and possession of a forged identity card is 2 years and 3 months; for
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possession of a false instrument is 1 year and 3 months and for breach of
I a deportation order is 2 years and 6 months. I
J J
13. Giving the defendant full credit for his pleas of guilty the
K sentences are reduced to 1 year and 6 months; 10 months and 1 year and K
8 months respectively. As in HKSAR v Tran Viet Thanh I am satisfied a
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total sentence of 25 months imprisonment properly reflects the
M defendant’s criminality on all four charges. M
N N
14. The defendant is convicted and sentenced as follows:
O O
Charge 1 – 1year and 6 months imprisonment;
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Charge 2 – 1year and 6 months imprisonment concurrent to charge 1;
Q Charge 3 – 10 months imprisonment, 2 months consecutive and 8 months Q
concurrent to charges 1 & 2;
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Charge 4 – 1 year and 8 months imprisonment, 5 months consecutive and
S 15 months concurrent to charges 1, 2 & 3 S
T (D. J. DUFTON) T
District Judge
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