HKSAR v. NGUYEN CHI TRUNG @ DONG VAN THANH

HCMA 1095/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1095 OF 2001

(ON APPEAL FROM TMCC 2485/2001)

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J U D G M E N T

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1. This Appellant was convicted in the Magistracy on his own plea to 4 charges: (1) Possession of Forged Identity Card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap. 177; (2) Breach of Deportation Order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap. 115; (3) Possessing a False Instrument, contrary to section 75(2) of the Crimes Ordinance, Cap. 200; (4) Making a False Representation to an Immigration Officer lawfully acting in the execution of Part 1B/II/III or IV of the Immigration Ordinance, contrary to section 42(1)(a) of the Immigration Ordinance, Cap. 115.

2. On charge 1, the Magistrate took a starting point of 15 months. He gave the Appellant full credit for his plea and reduced the sentence to 10 months' imprisonment.

3. For charge 2, the Magistrate noted that the Appellant had a previous conviction of a similar nature and that the range of sentence on this charge was 12 to 16 months' imprisonment. He took a 15 months starting point and reduced it to 10 months in recognition of the guilty plea.

4. On charge 3, the Magistrate took the view that the possession of the certificate, a forged Construction Industry Safety Certificate, although a serious offence, was not as serious as possession of a forged identity card. He took a starting point of 12 months' imprisonment, reduced to 8 months for the plea.

5. On charge 4, the Magistrate considered the offence was serious and that the sentence should not be dissimilar to those imposed on those who unlawfully remained in Hong Kong. He took a starting point of 21 months' imprisonment. He gave the Appellant full credit for his plea and reduced the sentence to 14 months.

6. As the Appellant had the identity card and the Safety Certificate in his possession at the same time, he ordered that the sentences on charges 1 and 3 to run concurrently. He ordered the sentence on charge 2 to run consecutively to the sentences on charges 1 and 3.

7. The Magistrate considered charge 4 was a separate offence and that the sentence should be consecutive. He took account of the principle of totality and ordered, 10 months of the sentence to be consecutive to those for charges 1, 2 and 3 and the balance to be concurrent.

8. The Appellant was sentenced to a total of 30 months' imprisonment.

9. The main ground of appeal was that the total sentence was manifestly excessive and wrong in principle because, the sentence on charges 1, 3 and 4 should have been concurrent with the sentence on charge 2, or, alternatively, that the sentences on charges 2 and 4 should have been concurrent and that in ordering 10 months of the sentence on charge 4 to run consecutively to the sentences on charges 1, 2 and 3, the Magistrate was in error.

10. The second ground of appeal was that the Magistrate wrongly took 21 months' imprisonment as the starting point of charge 4, as it was too high in all the circumstances of this case.

11. The third ground was that the Magistrate failed to consider that a total sentence of 30 months' imprisonment was excessive for offences of which the Appellant was convicted on a plea and admission of facts.

12. The Respondent argued that the sentences on charges 1, 3 and 4 should not be concurrent with that on charge 2. The Respondent relied on HKSAR v. Do Thi Hue MA 873 of 2001 as showing that a sentence for breach of deportation order should be partly consecutive to other sentences, subject to the totality principle and, for the same reason, the sentences on 2 and 4 should not be concurrent.

13. On ground 2, the Respondent conceded that the starting point of charge 4 was too high, as, although there was no tariff for the offence, the general starting point was about 9 months. (R v. HO Yeung-yau and Another MA 690/1993).

14. On ground 3, the Respondent submitted that the sentence for charge 1 should have been 20 months' imprisonment on a plea as the court had to take into account by upward adjustment, any previous unlawful entry. There were 2 previous unlawful entries by the Appellant. The Respondent argued that an extra 2 months' imprisonment should be considered (HKSAR v. Chan Man-mo [2001] 1 HKLRD 121).

15. The Respondent argued that as the range of sentence for charge 2 was 12 to 16 months' imprisonment after plea, a sentence of 10 months' imprisonment was too low. The Appellant had received a discount for plea, from what was the proper sentence after a plea of guilty.

16. On charge 3, the Respondent submitted the sentence of 8 months' imprisonment after plea was correct.

17. For charge 4, the Respondent conceded that the starting point should be around 9 months, and that a sentence of 6 months would have been appropriate.

18. The Respondent contended that the total sentence of 30 months' imprisonment was lenient for four offences, committed by a repeat offender.

19. The Respondent's main submission was that the sentences passed for breach of deportation order which give rise to the range of 12 to 16 months mentioned in HKSAR v. Do Thi Hue, do not reflect the intention of the legislature. That this is so, according to the Respondent, is shown by the fact that the maximum sentence for unlawfully landing and remaining in Hong Kong is 3 years and it is not an indictable offence. The maximum sentence for a breach of deportation order is 7 years' imprisonment on indictment and in the Magistracy, 3 years' imprisonment.

20. The Respondent argued that sentences for breach of deportation order should be significantly higher and urged this Court to set guidelines for such sentences.

21. This appears to be a regular cri de coeur from Mr Cheung who appeared for the Respondent. He referred to HKSAR v. Vu Thi Van Anh [2002] 2 HKLRD 284 where Gall J, in May 2000, was asked, again by Mr Cheung, to set a guideline sentence for the offence of breach of a deportation order. Gall J, having heard the arguments, declined, as he considered it was not an appropriate case in which to do so.

22. Gall J agreed that the range of sentence at that time was between 12 months and 16 months; although he accepted the authorities as persuasive only.

23. The judge agreed that a breach of deportation order, after one or more previous unlawful entries, required a higher penalty than that for a first breach. He considered 16 months appropriate for the breach in that case, and ordered it to run concurrently with a 15 month sentence imposed for a charge of illegally remaining, as he believed any combination of consecutive, or partly consecutive, sentences would make the totality in that case too high.

24. In agreeing with Mr Cheung's submission that the sentence should be higher for a breach of deportation order than for an offence of illegally remaining he stated:

"I accept the force of that argument. Where there is sufficient similarity between offences for a comparison to be made of their respective gravity and one clearly is of greater gravity than the other, the difference ought to be reflected in the sentence, particularly when an accused is charged with both of the offences. By saying that, I do not in any way suggest that magistrates should be fettered in the sentences which they impose and that they ought, in all cases, to take into consideration the peculiar facts of the case before them."

25. This matter was raised again by Mr Cheung, before Deputy Judge McMahon in HKSAR v Do Thi Hue HCMA 873/2001, an appeal against a sentence of 10 months' imprisonment for a breach of deportation order where the Magistrate had ordered it to be consecutive to a 15 months term for unlawfully entering and remaining, making a total of 25 months. That appellant argued, as does the Appellant now before me, that such sentences should be concurrent.

26. The Magistrate in that case ordered the consecutive sentences as he considered the breach a "flagrant flouting of a direction properly made in respect of the appellant" and that "sentences should distinguish between those who merely entered Hong Kong unlawfully and those who positively disobeyed an injunction not to return to Hong Kong. If concurrent sentences are passed, the service of deportation orders is rendered an empty exercise and the intention of the legislature and executive rendered nugatory."

27. McMahon DJ considered the Magistrate's concern was well-founded, but that his proper approach, rather than ignoring the nexus between the two offences, should have been to consider the overall culpability of the Appellant in deciding to what extent the sentence should have been ordered to run concurrently.

28. It seemed to him however, "that a sentencing magistrate could not be criticized for sentencing an offender who was in breach of a deportation order to a period in excess of 15 months' imprisonment after plea." He considered it odd, that despite the more serious nature of an offence of breach of deportation order, it generally attracted a lesser sentence than the 15 months imposed for breaches of s.38(1)(b) of the Immigration Ordinance.

29. The crux of the offence of a breach of deportation order does not lie solely in an offender's illegal presence in Hong Kong, as is true for unlawfully landing or remaining, or using a false identity card. The gravamen of the offence is that a convicted person, who has no right to be in Hong Kong, and who has been prohibited from returning for a specified period, disobeys that prohibition and returns to Hong Kong.

30. A breach of a Deportation Order is a more serious offence than those under s.38(1)(b) of the Immigration Ordinance. That is indicated by the legislative provision that enables such a breach to be dealt with on indictment, with a maximum sentence of 7 years. The sentencing range of 12 - 16 months that prevails at present seems to have been reached incidentally by reference to, and association with, other offences under the Immigration Ordinance. No Court of Appeal guidelines or tariffs exist and cases on sentence are persuasive rather than binding on this court.

31. Some principles do emerge. A sentence for such breach should be deterrent as the offence is serious. The charge should be recognised as aiming to prevent the unlawful return to, and presence in, Hong Kong of someone who has no right to enter, nor any right of abode, and to punish a convicted offender who defies an individualised prohibition.

32. Those aims justify a sentence after plea being higher than the 15 months after plea, decided on in So Man King, as proper for a first offender under s.38(1)(a) & (b) of the Immigration Ordinance and s.7A Reg.12 of the Registration of Persons Ordinance, Cap. 177, where there are no aggravating circumstances. As a sentence for breach of a deportation order aims to deter and is in a different category from those offences, it should run wholly, or partly, consecutively, to other sentences imposed on the same occasion. The court, as in all cases, would have to consider the principle of totality in deciding how much of the sentence should be consecutive, but that should be done with a view to deterring any repetition of the breach.

33. In the instant case it is arguable that if the Appellant had received a meaningful sentence in 1999 for his first breach of deportation order, he might not have repeated the breach.

34. The Appellant had one previous conviction for breach of a deportation order in 1999. He was sentenced to 2 months, consecutive to a sentence of 13 months for illegally remaining. He had committed two immigration offences in 1998, including one of remaining in Hong Kong. Obviously the 1999 sentences were too lenient. This appeal deals with the Appellant's second breach of a deportation order. This is his third series of immigration offences. He is a determined offender and none of the sentences passed to date have deterred him.

35. A sentence for breach of a deportation order, comparable to that for a plea to unlawfully entering and remaining, for a first charge, could properly be 18 months' imprisonment. Given the maximum sentence and the serious nature of the offence it would be difficult to fault sentences that were higher than 16 months.

36. What is important is that these charges are dealt with in a consistent manner and with a view to totality, bearing in mind the maximum sentencing limit in the Magistracy of 3 years' imprisonment. Where an offender has previous offences of a similar nature an upward adjustment of a starting point, or of a sentence, is justified. That is so whether the offence is illegally landing and remaining or, as in this case, a breach of deportation order. An increase of sentence for charge 2 would have been justified as it was a second offence.

37. What I have stated does not purport to be a tariff but may be viewed as guideline principles extrapolated from the elements of the offence, cases of similar nature, and the purpose of the legislation. It would be helpful at some point for the Court of Appeal to give guidance on this matter, but that time has not yet come.

38. There is no merit in the grounds of appeal advanced on behalf of the Appellant, who is a repeat offender and has not been deterred to date by the sentences passed on him. Bearing in mind the considerations I have outlined, I deal with the sentences in the following manner.

39. The proper sentence for charge 1 should be 18 months to acknowledge that this is the Appellant's third unlawful entry to Hong Kong.

40. On charge 2, the breach of deportation order, I consider that a proper sentence after plea for a first offence of this type is 18 months. Ordinarily for a second breach, (as in this case) a sentence of 21 months could be justified. However I take into account that an appeal court customarily makes some allowance for the appellant it is dealing with, if recommending general guidance for upward adjustment of sentences. For that reason I impose 18 months, rather than 2 1 months, as the sentence for this charge.

41. On charge 3 the Magistrate took a starting point of 12 months and sentenced the Appellant to 8 months' imprisonment. I leave that sentence unchanged.

42. On charge 4 I take what is the usual starting point of 9 months and sentence the Appellant to 6 months' imprisonment. The appeal is thus allowed to that extent, as this reduces the original sentence of 14 months imposed by the Magistrate.

43. I consider totality and order that 12 months of the sentence on charge 1 be concurrent with and 6 months be consecutive to the sentence on charge 2.

44. Two months of the sentence on charge 3 should be consecutive to the sentences on charges 1 and 2.

45. The sentence on charge 4 should be consecutive to the sentences on charges 1, 2 and 3.

46. The total sentence will be 32 months' imprisonment.