HKSAR v. NGUYEN VAN PHU

bjbjU HCMA1240/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO.1240 OF 2001 (ON APPEAL FROM TMCC 2974 OF 2001) ------------------------

BETWEEN HKSAR Respondent and NGUYEN VAN PHU Appellant ------------------------ Before : Deputy High Court Judge Whaley in Court Date of Hearing : 16 January 2002 Date of Judgment : 16 January 2002 -------------------------

J U D G M E N T ------------------------- 1. The appellant appears before me in person today to prosecute his appeal against the sentence of 15 months effective imprisonment which was imposed upon him by Mr Stephen Smart in Tuen Mun Magistrates Court on 30 October 2001.

2. The appellant had on the previous day, pleaded guilty to the three charges which were proffered against him, namely possession of a forged identity card on 26 October 2001; secondly possession of a false instrument on the same day; and thirdly breach of a condition of stay, in that he had overstayed beyond the time permitted him to remain in Hong Kong by the Director of Immigration.

3. The admitted facts disclosed that on the day in question when two patrolling police officers intercepted the defendant and asked him to produce his identity particulars, he produced the identity card which is the subject of the 1st charge, and handed it to one of the police officers for inspection. The police officer suspected that the identity card was forged and, under questioning, the defendant admitted that it was forged, and that he had bought it from an unknown male for $500.

4. At the police station the defendant was searched and found to be in possession of a false construction safety training certificate, which he admitted was false and which he had also purchased from another. Later, a friend of the defendant brought his Vietnamese passport to the police station and this disclosed that the defendant had been given permission to stay in Hong Kong only up to 7 June 2001, so he had overstayed by some 4 months at that stage. On examination, the government laboratory confirmed that the identity card and the construction safety training certificate were forgeries.

5. For the purpose of assessing the appropriate sentence to impose, the magistrate followed the decision of Verina Bokhary J in HKSAR v. Chan Mo, Magistracy Appeal No.1059 of 1999, in which the judge carefully analysed the sentences passed in previous cases and the reasons given, and she very helpfully gathered together and set out all the principles and sentence levels which emerged from those previous cases.

6. It is well established in relation to a charge of possession of a forged identity card that where the offender s presence in Hong Kong was illegal at the time of the offence, whether he was an illegal immigrant or an overstayer, a sentence of 15 months imprisonment upon a plea of guilty is normally the appropriate sentence to impose if he was in possession of the forged identity card for the purpose of obtaining employment or otherwise furthering his remaining in Hong Kong.

7. A further principle is that it is an element of aggravation if the offender produced the forged identity card to a police officer who was conducting an identity check, which could (if considered appropriate) be reflected by adding an additional approximate 2 months imprisonment to the sentence which would otherwise have been applicable.

8. In the present case, the appellant admitted that he was illegally in Hong Kong at the time that he committed these offences, as an overstayer, and the magistrate s finding was, in my view, clearly correct that the irresistible inference to be drawn from the admitted facts was that the defendant possessed this forged identity card and training certificate for the purpose of obtaining employment, or otherwise furthering his remaining in Hong Kong.

9. In all these circumstances, the sentence of 15 months imprisonment which the magistrate imposed on the 1st charge was entirely appropriate. The sentences of 3 months imprisonment which he imposed on each of the 2nd and 3rd charges were well within the usual range of the sentences which are imposed for such offences, and they can in no way be faulted or described as excessive. The magistrate very fairly ordered both the latter sentences to run concurrently with the sentence imposed on the 1st charge, so that the total effective sentence imposed on the defendant on all three charges was 15 months imprisonment.

10. As far as the circumstances of the defendant s parents in Vietnam are concerned, which he has put before me this morning, I am by no means unsympathetic to the defendant s anxiety in that respect, but these are not factors which justify a reduction in the sentence which was imposed.

11. There is no merit in this appeal against sentence, and the appeal is accordingly dismissed. ( B.W.K. Whaley ) Deputy High Court Judge Mr Paul Madigan, SGC, for the Respondent The Appellant, Nguyen Van Phu, in person, present -

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