R. v. NGUYEN VAN DOAN and Others

M.A. No.1478 of 1996
M.A. No.1493 of 1996
M.A. No.1498 of 1996

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H E A D N O T E

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MAGISTRATES' APPEAL - SENTENCING POLICY FOR CHINESE ILLEGAL IMMIGRANTS SHOULD BE THE SAME FOR VIETNAMESE ILLEGAL IMMIGRANTS

DONG DUC DAI - M.A.835 OF 1996 (KEITH J.) NOT FOLLOWED

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NOS.1478, 1493 and 1498 OF 1996

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J U D G M E N T

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1. This is an appeal from Mr Line who has very properly given leave to appeal out of time for three Vietnamese illegal immigrants. All pleaded guilty to remaining in Hong Kong without the authority of the Director of Immigration and were sentenced to 15 months imprisonment. I have dealt with the appeals together. They raise an important point because there appears to be a difference of approach, it may be by some magistrates and indeed by some High Court judges, as to the appropriate sentence to pass.

2. The position as far as Chinese illegal immigrants are concerned, is that there has been a policy decision that they are either sent straight back to China, or if found, for example, on construction sites or committing another offence, they are given 15 months' imprisonment. This is to deter illegal immigrants from coming to Hong Kong. This policy has been consistently followed - So Man King [1989]1 HKLR 142.

3. However what has recently been happening is that a number of Vietnamese have gone back to Vietnam from Hong Kong, either through voluntary repatriation or sometimes by forced repatriation. When they have returned, they have realised that there are better opportunities here so they have started to come back and no doubt have encouraged others to come to Hong Kong.

4. The three that I have today are people that have returned to Hong Kong to seek employment and magistrates are finding it difficult because if, for example, six illegal immigrants are arrested on the construction site for the new airport, four Chinese would receive 15 months, then why should the other two not be treated in the same way.

5. In 1996, three High Court Judges found no difference in principle between Chinese and Vietnamese illegal immigrants. In October 1996, Keith J. however, thought 9 months imprisonment appropriate. In a clear and well researched judgment, he was of the opinion that as the underlying policy of So Man King was the need to deter the large number of Chinese illegal immigrants coming into Hong Kong, then as there was no evidence that the level of Vietnamese illegal immigrants coming was as high, the 15 months policy guideline was not applicable. (Dong Duc Dai & Others M.A.835 of 1996).

6. I, with respect, do not agree with Keith J.'s approach.

7. The underlying principle behind Hong Kong's stance on illegal immigrants is the damage, actual or potential, which may be caused to the population. Although the number of Vietnamese illegal immigrants is smaller than Chinese, damage is still caused.

8. The building of the airport which is a mammoth engineering project and has attracted worldwide attention unfortunately has also attracted the attention of persons from other countries to work here. So there have been a large number of Chinese illegal immigrants found working on the construction site, and we now have a number of Vietnamese who have sneaked back into Hong Kong.

9. The Court of Appeal recently in Pham Duy-son and Ors Crim.App. 631 of 1996, dealt with an appeal of persons bringing Vietnamese illegal immigrants here and it was submitted that different guidelines applied to those. Mortimer J.A. said :

"It is not appropriate to distinguish between the captains and crews of vessels because they happen to come from Vietnam rather than China."

10. Power Ag.C.J. said :

"... we have a duty to the people of Hong Kong and we can fulfil this duty only by imposing a proper sentence upon those who seek to bring illegal immigrants into this Colony."

11. In my judgment, there is nothing different in principle between Vietnamese and Chinese illegal immigrants and magistrates should sentence them to the same 15 months imprisonment.

12. However, there may well be circumstances where the magistrate is entitled to exercise his discretion to pass a lesser sentence. These appeals are dismissed.