HKSAR v. TRAN THI HANG

HCMA299/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.299 OF 2001

(ON APPEAL FROM KTCC 3 OF 2001)

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J U D G M E N T

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1. The appellant was convicted by Mr Thomas Tsang, sitting at Kwun Tong Magistracy, of the offence of breach of a deportation order and was sentenced to nine months' imprisonment. She was granted leave to appeal against the conviction out of time. The main ground of appeal is that when the deportation order was originally served on her in 1998, it was not explained to her that she could never return to Hong Kong. She claimed that the interpreter at the time had said to her that, if the imprisonment would be less than two years, then she could re-enter Hong Kong. I am not exactly sure what she meant by that. At any rate, the magistrate's finding after trial was that he was satisfied beyond reasonable doubt that the deportation order was duly served and explained to the appellant by the two prosecution witnesses and that the appellant understood the same.

2. The other ground that the appellant relied upon was the fact that she had entered Hong Kong after the issuance of the deportation order on 15 December 2000 and she was permitted to remain in Hong Kong for 14 days. That is, to my mind, not a matter which has any bearing on the conviction but may have some bearing on the sentence.

3. In the magistrate's Reasons for Sentence, he mentioned the case of HKSAR v. Vu Thi Van Anh [2000] 2 HKLRD 284 where Gall J, having reviewed previous cases, came to the conclusion that the range of imprisonment for this offence ranged between 12 months and 16 months' imprisonment. The magistrate, acting out of clemency for the appellant, imposed only a term of nine months' imprisonment.

4. Ms Leung, appearing for the respondent this morning, has very fairly pointed out that if, when the appellant entered Hong Kong on 15 December 2000 on a Vietnamese passport, it had been discovered that she was the subject matter of the deportation order, probably, she might not have been prosecuted and she might just have been refused entry into Hong Kong. I agree with that very fair submission by Ms Leung. The Vietnamese passport that the appellant had used to enter Hong Kong was issued in the name of a person "Tran Thi Bang" whereas the deportation order against the appellant was issued in the name of "Tran Thi Hang". So, it can be seen that the last word is different between the passport and the deportation order.

5. The appellant claims that she had entered Hong Kong this time to try to arrange a divorce from her husband whom she married in Hong Kong in 1992. Personally, I have some doubts about the correctness of that claim because even for a foreigner, she must have realized that it would not have been possible to arrange and finalize a divorce in 14 days. However, I have regard to the point made by Ms Leung and I am also of the view that probably, if it had been noticed at the time that the appellant was the subject matter of deportation order, she would probably just have been refused entry and not prosecuted for the present offence. That being the case, I am prepared, again out of clemency for the appellant, to reduce the sentence imposed upon her by the magistrate.

6. So, the appeal against conviction out of time is dismissed. The appeal against sentence is allowed to the extent that the original term of imprisonment is substituted with one of 41/2 months.