R. v. HOANG DINH HUY

1996,No. MA 1530

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. The appellant was convicted by his own plea of two offences : A. Breach of Deportation Order and B. Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. He was sentenced respectively to 6 months and 12 months imprisonment concurrent but the sentences were ordered by the magistrate to be suspended for 12 months. At the time of sentence, the magistrate was informed that the appellant had only one previous conviction. Subsequently, it came to light that he had previous convictions of escaping from detention camp, possession of forged refugee card and breach of deportation order.

2. The prosecution then applied for a review and the sentences were varied to one of 15 months concurrent immediate custodial sentence on each conviction.

3. The facts are the appellant was found hiding underneath a container truck which came across the border. The appellant admitted to be a Vietnamese illegal immigrant who sneaked into Hong Kong from Shenzhen.

4. The appellant appealed against sentence and one of the grounds was that the magistrate in coming to the sentence of 15 months imprisonment placed too much weight on the previous record of the appellant. Another ground of appeal was that the magistrate should distinguish for the purpose of sentencing illegal immigrants, between Vietnamese illegal immigrants and illegal immigrants from China.

5. Miss Tsang for the appellant relied on R. v. Vy Van Kien and another [1991] 1 HKLR 422 for the proposition that previous convictions are not aggravating factors justifying an increase in the sense that would otherwise have been imposed on the evidence in the particular case. She submitted that the magistrate after knowing the previous convictions, had increased the sentence from 12 months imprisonment to 15 months imprisonment. She also relied on R. v. Dong Duc Dai and others, MA835/96, R. v. Ronnie Alfonso Talaw MA910/96 where Keith J. held that the guidelines in R. v. So Man King [1989] 1 HKLR 142 did not apply to illegal immigrants from Vietnam because the level of illegal immigrants from Vietnam was not as high as the level of illegal immigrants from China when So Man King was decided.

6. Mr Tam for the prosecution relied on R. v. Chan Wun Sang and another [1993] 1 HKCLR 46 for the proposition that previous convictions for unlawful entry into Hong Kong could be taken into account to justify an increase in the standard sentence.

7. The magistrate was apparently influenced by the appellant's record. Initially, he was of the opinion that imprisonment should be imposed but there were exceptional circumstances that justify the sentences to be suspended. Subsequently on being made aware of the appellant's record, when he reviewed the sentences, he increased them to 15 months each immediate custodial sentence. He said :

"I reviewed my decision upon the prosecution's application later on the same day by reason of the fact that further enquiries revealed that the Defendant had a string of convictions not previously known ...."

Later, in his reasons for sentence, he said :

"In adopting an appropriate starting point for passing sentence in the present case, I reminded myself that one ought not to be punished for the offences he had committed in the past. Yet having examined the present circumstances carefully, I felt that a heavier sentence must be imposed to deter him from coming to Hong Kong again."

8. He adopted 15 months as the appropriate sentence. The magistrate adopted this level of sentence because he was following the case of Chan Wun Sang and he imposed the sentence also as a deterrent to the appellant. There was a different view from Keith J.'s opinion that there should be a distinction in sentencing illegal immigrants from Vietnam and illegal immigrants from China. This contrary view was to be found in R. v. Nguyen Thi Tham MA747/96 where Gall J. citing the view of P. Chan J. in Tran Quoc Toan MA60/96 and agreeing with his view, held that the distinction, if any existed, between illegal immigrants from Vietnam and those from China was marginal and there was no reason in sentencing illegal immigrants from Vietnam to depart from the guidelines of So Man King. I agree with Gall J. and P. Chan J. that there should be no such distinction for the purpose of sentencing illegal immigrants from Vietnam. Keith J. in R. v. Ronnie Alfonso Talaw MA910/96 agreed that there was justification for imposing a deterrent sentence for a person who had been prohibited from entering Hong Kong.

9. The appellant was banned from returning to Hong Kong. He was subject to a deportation order when he returned in January 1996 and he was convicted of breach of deportation order. When he committed the present offence, he again had breached a deportation order. I agree that a deterrent sentence was called for. The appellant was not exactly an illegal immigrant from Vietnam. He was of Vietnam origin but he sneaked into Hong Kong from Shenzhen. He was no different from any other Chinese illegal immigrants who sneaked into Hong Kong. The magistrate's sentences are neither wrong in principle nor manifestly excessive. The appeal against sentence must be dismissed.