DCCC581/2013 HKSAR v. NGUYEN THI BICH THOA also known as NGUYEN THI BICH THOA - LawHero
DCCC581/2013
HKSAR v. NGUYEN THI BICH THOA also known as NGUYEN THI BICH THOA
區域法院（刑事）HH Judge A. Kwok30/7/2013
DCCC581/2013
A A
B B
DCCC 581/2013
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 581 OF 2013 E
F F
----------------------------
G HKSAR G
v
H H
NGUYEN Thi Bich Thoa
I also known as I
NGUYEN THI BICH THOA
J J
----------------------------
K K
Before: HH Judge A. Kwok
L L
Date: 31 July 2013 at 3.20 pm
M Present: Ms Janice Cheuk, PP of the Department of Justice, for M
HKSAR
N N
Mr Leslie Yeung, of CL Chow & Macksion Chan, assigned
O by the Director of Legal Aid, for the defendant O
Offence: (1) Using a forged identity card（使用偽造身分證）
P P
(2) Remaining in Hong Kong without the authority of the
Q Q
Director of Immigration after having landed unlawfully
R in Hong Kong（在香港非法入境後未得入境事務處 R
處長授權而留在香港）
S S
(3) Breach of deportation order（違反遞解離境令）
T T
U U
V V
- 2 -
A A
B B
-------------------------------------
C REASONS FOR SENTENCE C
-------------------------------------
D D
E 1. The defendant (a female) (aged 46) appeared before me this E
afternoon and pleaded guilty to three charges, namely, 1st charge, “Using a
F F
forged identity card”, contrary to section 7A(1) of the Registration of
G Persons Ordinance, Cap 177; 2nd charge, “Remaining in Hong Kong G
without the authority of the Director of Immigration after having landed
H H
unlawfully in Hong Kong”, contrary to section 38(1)(b) of the
I Immigration Ordinance, Cap 115; and finally, 3rd charge, “Breach of I
deportation order”, contrary to section 43(1)(a) of the Immigration
J J
Ordinance, Cap 115.
K K
Facts
L L
M 2. This is a very simple and straightforward case. The defendant M
was stopped and searched by the police at 7.25 am on 24 April 2013 when
N N
she was found acting nervously working in a vegetable wholesale store
O situated in No. 33 Lung Sum Avenue, Sheung Shui, New Territories. O
P P
3. She was intercepted by the police whereupon she showed a
Q forged Hong Kong ID card to the policeman for inspection. As the Q
policeman found that the colour and fonts of the identity card in question
R R
were different from the normal Hong Kong identity cards, the policeman
S enquired the defendant about it. It was then that the defendant admitted S
that the ID card in question was forged and that she had bought it in the
T T
mainland for HK$1,000. She further freely admitted that she had entered
U U
V V
- 3 -
A A
B B
Hong Kong illegally two months ago to look for a job. She also admitted
C that she had shown the forged Hong Kong ID card to the operator of the C
vegetable store to look for a job in the evening of the previous day.
D D
E 4. Under caution, after she was arrested, she repeated that she E
came to Hong Kong illegally from the mainland two months ago to look
F F
for a job and that she bought the ID card for HK$1,000.
G G
5. The police later sent the suspected forged Hong Kong ID card
H H
to the Government Laboratory for examination and it was confirmed to be
I a forged Hong Kong ID card. Further investigation confirmed that the I
defendant was subject to a deportation order first issued on 24 June 1997.
J J
K Criminal records and the background of the defendant K
L L
6. The defendant had in the past 7 conviction records involving
M 18 charges starting from 1994 to 2008. Out of the 18 charges, 5 were for M
“Breach of deportation order” and 5 for “Remaining in Hong Kong
N N
without authority”. There are also another 5 charges for “Possession of a
O false Hong Kong ID card”. O
P P
7. Mr Yeung, solicitor for the defendant, informed the court that
Q his client is a Vietnamese and she first came to Hong Kong together with Q
her husband as a refugee back in 1989. They were then detained in the
R R
Whitehead refugee camp and during which time they gave birth to two
S children: a daughter and a son and they were born respectively in 1990 and S
1991. The family was later voluntarily repatriated back to Vietnam in
T T
1995 but after she returned to Vietnam, she could not find a job and she
U U
V V
- 4 -
A A
B B
decided to come back to Hong Kong, albeit unlawfully without her
C husband and committed the offence of “Possession of a forged document”. C
After serving the sentence, she was deported back to Vietnam. Later, her
D D
husband had left her and the family and the two children were then under
E the care and custody of her sisters. E
F F
8. Mr Yeung informed the court that the reason why in the
G subsequent years the defendant came back to Hong Kong on and off to G
commit further immigration offences was because she was under
H H
economic pressure to raise the two children. The two children were now
I both studying in a university in Vietnam and they were due to be graduated I
this year. The present offence was committed by the defendant in order to
J J
pay the tuition fees. Mr Yeung submitted therefore that after both children
K have graduated from the university, the economic condition of the family K
would be improved and the chance of the defendant coming back to
L L
Hong Kong to commit further offence is therefore low.
M M
9. Mr Yeung acknowledged that there are guidelines for illegal
N N
remaining offences but submitted that as the economic condition in
O Hong Kong has changed, the question of influx of refugees or illegal O
immigrants has become less prevalent during recent years. Therefore he
P P
asked the court to exercise the discretion not to follow the guideline
Q strictly. Q
R R
10. Mr Yeung also acknowledged that the defendant had a bad or
S appalling record but he still reiterated that the defendant had pleaded guilty S
this time and asked the court to consider the question of totality when
T T
imposing the overall sentences for the three charges. He asked the court to
U U
V V
- 5 -
A A
B B
consider imposing an overall concurrent sentence to deal with all three
C offences together. C
D D
Sentencing considerations
E E
11. A sentence of 15 months’ imprisonment was appropriate for
F F
possession of a forged identity card by an illegal immigrant of which the
G underlying criminality was his unlawful presence in Hong Kong. G
H H
12. In the case of HKSAR v Tran Viet Thanh [2012] 1 HKLRD
I 903, the Court of Appeal had held that if an illegal immigrant made use of I
a card to obtain a benefit such as to open a bank account or to work
J J
illegally, then the 15 months’ sentence could be adjusted upwards. Further,
K the Court of Appeal held that a concurrent sentence was appropriate for the K
forged identity card offence and unlawfully remaining offence save in
L L
exceptional circumstances. (See R v So Man King [1989] 1 HKLR 142,
M and also R v Chan Wun Sang [1995] 1 HKCLR 46) M
N N
13. As for the “Breach of the deportation” offence, if this is the
O first time that the defendant committed the offence, according to the case O
of HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762, the High Court had
P P
held after reviewing the authorities that a sentence of 18 months’
Q imprisonment was appropriate. For an offender such as the defendant who Q
had already committed a similar breach of deportation order for five times
R R
in the past, the sentence must be adjusted upwards.
S S
14. In HKSAR v Pham Van Hung CACC 14 of 2011, the Court of
T T
Appeal had imposed a sentence of 28 months after the applicant had
U U
V V
- 6 -
A A
B B
pleaded guilty to “Breach of deportation order” (it being the fifth
C conviction). Apart from this breach of deportation order, the same C
applicant was also convicted of a sentence on his plea of “Unlawfully
D D
remaining” (that being the sixth conviction). The Court of Appeal had
E imposed a sentence of 20 months in that case. In the end, the Court of E
Appeal ordered that both sentences to be served concurrently.
F F
G 15. Applying the above authorities, this will be my sentence for G
the three charges in this case. For Charge 1, “Using a forged identity card”,
H H
the defendant is sentenced to 18 months’ imprisonment.
I I
16. For Charge 2, “Unlawfully remaining in Hong Kong”, (this
J J
being the sixth conviction and that the last conviction was already 21
K months), I must adjust the sentence upward to achieve the deterrent effect. K
The sentence that I shall impose is therefore 24 months’ imprisonment.
L L
M 17. For Charge 3, “Breach of the deportation order”, again this is M
already the sixth time that the defendant was convicted of a similar offence.
N N
I will impose a 28 months’ imprisonment. And for the three offences,
O applying the principle of totality, I shall order the sentence of each charge O
to run concurrently. The total sentence is therefore still one of 28 months’
P P
imprisonment.
Q Q
R R
S ( A. Kwok ) S
District Judge
T T
U U
V V
A A
B B
DCCC 581/2013
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 581 OF 2013 E
F F
----------------------------
G HKSAR G
v
H H
NGUYEN Thi Bich Thoa
I also known as I
NGUYEN THI BICH THOA
J J
----------------------------
K K
Before: HH Judge A. Kwok
L L
Date: 31 July 2013 at 3.20 pm
M Present: Ms Janice Cheuk, PP of the Department of Justice, for M
HKSAR
N N
Mr Leslie Yeung, of CL Chow & Macksion Chan, assigned
O by the Director of Legal Aid, for the defendant O
Offence: (1) Using a forged identity card（使用偽造身分證）
P P
(2) Remaining in Hong Kong without the authority of the
Q Q
Director of Immigration after having landed unlawfully
R in Hong Kong（在香港非法入境後未得入境事務處 R
處長授權而留在香港）
S S
(3) Breach of deportation order（違反遞解離境令）
T T
U U
V V
- 2 -
A A
B B
-------------------------------------
C REASONS FOR SENTENCE C
-------------------------------------
D D
E 1. The defendant (a female) (aged 46) appeared before me this E
afternoon and pleaded guilty to three charges, namely, 1st charge, “Using a
F F
forged identity card”, contrary to section 7A(1) of the Registration of
G Persons Ordinance, Cap 177; 2nd charge, “Remaining in Hong Kong G
without the authority of the Director of Immigration after having landed
H H
unlawfully in Hong Kong”, contrary to section 38(1)(b) of the
I Immigration Ordinance, Cap 115; and finally, 3rd charge, “Breach of I
deportation order”, contrary to section 43(1)(a) of the Immigration
J J
Ordinance, Cap 115.
K K
Facts
L L
M 2. This is a very simple and straightforward case. The defendant M
was stopped and searched by the police at 7.25 am on 24 April 2013 when
N N
she was found acting nervously working in a vegetable wholesale store
O situated in No. 33 Lung Sum Avenue, Sheung Shui, New Territories. O
P P
3. She was intercepted by the police whereupon she showed a
Q forged Hong Kong ID card to the policeman for inspection. As the Q
policeman found that the colour and fonts of the identity card in question
R R
were different from the normal Hong Kong identity cards, the policeman
S enquired the defendant about it. It was then that the defendant admitted S
that the ID card in question was forged and that she had bought it in the
T T
mainland for HK$1,000. She further freely admitted that she had entered
U U
V V
- 3 -
A A
B B
Hong Kong illegally two months ago to look for a job. She also admitted
C that she had shown the forged Hong Kong ID card to the operator of the C
vegetable store to look for a job in the evening of the previous day.
D D
E 4. Under caution, after she was arrested, she repeated that she E
came to Hong Kong illegally from the mainland two months ago to look
F F
for a job and that she bought the ID card for HK$1,000.
G G
5. The police later sent the suspected forged Hong Kong ID card
H H
to the Government Laboratory for examination and it was confirmed to be
I a forged Hong Kong ID card. Further investigation confirmed that the I
defendant was subject to a deportation order first issued on 24 June 1997.
J J
K Criminal records and the background of the defendant K
L L
6. The defendant had in the past 7 conviction records involving
M 18 charges starting from 1994 to 2008. Out of the 18 charges, 5 were for M
“Breach of deportation order” and 5 for “Remaining in Hong Kong
N N
without authority”. There are also another 5 charges for “Possession of a
O false Hong Kong ID card”. O
P P
7. Mr Yeung, solicitor for the defendant, informed the court that
Q his client is a Vietnamese and she first came to Hong Kong together with Q
her husband as a refugee back in 1989. They were then detained in the
R R
Whitehead refugee camp and during which time they gave birth to two
S children: a daughter and a son and they were born respectively in 1990 and S
1991. The family was later voluntarily repatriated back to Vietnam in
T T
1995 but after she returned to Vietnam, she could not find a job and she
U U
V V
- 4 -
A A
B B
decided to come back to Hong Kong, albeit unlawfully without her
C husband and committed the offence of “Possession of a forged document”. C
After serving the sentence, she was deported back to Vietnam. Later, her
D D
husband had left her and the family and the two children were then under
E the care and custody of her sisters. E
F F
8. Mr Yeung informed the court that the reason why in the
G subsequent years the defendant came back to Hong Kong on and off to G
commit further immigration offences was because she was under
H H
economic pressure to raise the two children. The two children were now
I both studying in a university in Vietnam and they were due to be graduated I
this year. The present offence was committed by the defendant in order to
J J
pay the tuition fees. Mr Yeung submitted therefore that after both children
K have graduated from the university, the economic condition of the family K
would be improved and the chance of the defendant coming back to
L L
Hong Kong to commit further offence is therefore low.
M M
9. Mr Yeung acknowledged that there are guidelines for illegal
N N
remaining offences but submitted that as the economic condition in
O Hong Kong has changed, the question of influx of refugees or illegal O
immigrants has become less prevalent during recent years. Therefore he
P P
asked the court to exercise the discretion not to follow the guideline
Q strictly. Q
R R
10. Mr Yeung also acknowledged that the defendant had a bad or
S appalling record but he still reiterated that the defendant had pleaded guilty S
this time and asked the court to consider the question of totality when
T T
imposing the overall sentences for the three charges. He asked the court to
U U
V V
- 5 -
A A
B B
consider imposing an overall concurrent sentence to deal with all three
C offences together. C
D D
Sentencing considerations
E E
11. A sentence of 15 months’ imprisonment was appropriate for
F F
possession of a forged identity card by an illegal immigrant of which the
G underlying criminality was his unlawful presence in Hong Kong. G
H H
12. In the case of HKSAR v Tran Viet Thanh [2012] 1 HKLRD
I 903, the Court of Appeal had held that if an illegal immigrant made use of I
a card to obtain a benefit such as to open a bank account or to work
J J
illegally, then the 15 months’ sentence could be adjusted upwards. Further,
K the Court of Appeal held that a concurrent sentence was appropriate for the K
forged identity card offence and unlawfully remaining offence save in
L L
exceptional circumstances. (See R v So Man King [1989] 1 HKLR 142,
M and also R v Chan Wun Sang [1995] 1 HKCLR 46) M
N N
13. As for the “Breach of the deportation” offence, if this is the
O first time that the defendant committed the offence, according to the case O
of HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762, the High Court had
P P
held after reviewing the authorities that a sentence of 18 months’
Q imprisonment was appropriate. For an offender such as the defendant who Q
had already committed a similar breach of deportation order for five times
R R
in the past, the sentence must be adjusted upwards.
S S
14. In HKSAR v Pham Van Hung CACC 14 of 2011, the Court of
T T
Appeal had imposed a sentence of 28 months after the applicant had
U U
V V
- 6 -
A A
B B
pleaded guilty to “Breach of deportation order” (it being the fifth
C conviction). Apart from this breach of deportation order, the same C
applicant was also convicted of a sentence on his plea of “Unlawfully
D D
remaining” (that being the sixth conviction). The Court of Appeal had
E imposed a sentence of 20 months in that case. In the end, the Court of E
Appeal ordered that both sentences to be served concurrently.
F F
G 15. Applying the above authorities, this will be my sentence for G
the three charges in this case. For Charge 1, “Using a forged identity card”,
H H
the defendant is sentenced to 18 months’ imprisonment.
I I
16. For Charge 2, “Unlawfully remaining in Hong Kong”, (this
J J
being the sixth conviction and that the last conviction was already 21
K months), I must adjust the sentence upward to achieve the deterrent effect. K
The sentence that I shall impose is therefore 24 months’ imprisonment.
L L
M 17. For Charge 3, “Breach of the deportation order”, again this is M
already the sixth time that the defendant was convicted of a similar offence.
N N
I will impose a 28 months’ imprisonment. And for the three offences,
O applying the principle of totality, I shall order the sentence of each charge O
to run concurrently. The total sentence is therefore still one of 28 months’
P P
imprisonment.
Q Q
R R
S ( A. Kwok ) S
District Judge
T T
U U
V V