HKSAR v. HOANG TRONG NGHIA

DCCC 462/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 462 OF 2012

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Reasons for Sentence

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Charges

1.  The defendant was a returning deportee.  He came to Hong Kong illegally by hiding in a lorry from Shenzhen.  In Wellcome Supermarket he was caught stealing 15 toothbrushes and a box of shaving razors to the value of over $300 (1^st Charge: theft).  After arrest and caution, he disclosed that earlier on the same day he had sneaked into Hong Kong illegally by hiding in a lorry coming from Shenzhen (2^nd Charge: unlawful remaining) in breach of a deportation order (3^rd Charge: breach of deportation order).  He said he came to seek medical treatment in Hong Kong.  

2.  He was the subject of a deportation order of 2003.  He had committed breaches in 2003, 2005, 2007, 2009 and 2011 respectively.   

Personal background and mitigation

3.  D1 was born and lives in Vietnam.  He is now aged 40.  He has a cohabitant and a daughter aged 6 in Vietnam.  He needs to support them as well as his mother and siblings there. His meager income of about HK$1,000 per month was grossly insufficient.  He came to Hong Kong to look for a job with a better pay.  There was no problem with his health except that he was feeling unwell due to hunger when arrested.

4.  He has 1 theft, 5 unlawful remaining and 4 breach of deportation order convictions.  Not all instances of his illegal entry resulted in prosecution.   

Sentencing considerations

Shoptheft (1^st Charge)

5.  There are no sentencing tariffs for shoptheft of a minor nature. 

Unlawful remaining (2^nd Charge)

6.  The maximum sentence is 7 years’ imprisonment on indictment. 

7.  As stated in The Queen v. So Man King HCMA 408/1988, the usual sentence for unlawful remaining shall be 15 months on a plea, subject to upward adjustment due to any previous unlawful entry, whether resulting in prosecution or not, and other circumstances. 

8.  In HKSAR v. Hau Hoi-tung CACC 39/2002, a sentence of 21 months’ imprisonment was approved on appeal when the defendant pleaded guilty to unlawful remaining for the third time, reflecting a notional starting point of about 30 months. 

9.  In HKSAR v. Lau Bing CACC 138/2008, a starting point of 33 months for the fourth repeat offence of unlawful remaining was approved on appeal. 

Breach of deportation order (3^rd Charge)

10.  The maximum sentence is 7 years’ imprisonment on indictment. 

11.  In HKSAR v. Gabriel Malou Lantin [2004] HKCU 1065, a starting point of 30 months as the second breach of a deportation order was approved on appeal.  Beeson J commented that a first time breach would warrant a starting point of 27 months. 

12.  In HKSAR v Mohammad Shehzad HCMA 793/2007, a sentence of 20 months on a plea, reflecting a notional starting point of 30 months, was approved on appeal for a third breach of a deportation order.    

Computing sentences for the 3 charges

13.  In HKSAR v. Pham Van Tuan CACC 272/2010, the defendant pleaded guilty to the possession of a small amount of heroin (1^st Charge), unlawfully remaining in Hong Kong for 2 days (2^nd Charge) and the breach of a deportation order (3^rd Charge).  It was his second breach of a deportation order.  Yeung JA, who delivered the judgment in the Court of Appeal, ordered 3 months to be served consecutively between the 2 immigration charges, making a length of 23 months, thus reflecting a notional starting point of about 3 years.  The drug charge had a sentence of 6 months to run wholly consecutively to the 23 months for the immigration charges.  His overall sentence was to be reduced from 36 months to 29 months on appeal.     

14.  In the same judgment, Yeung JA commented on the 2 immigration charges as follows: 

17. The two immigration offences were not separate and distinct. The position was carefully analyzed in Do Thi Hue [HCMA 873/2001] and we do not find it necessary to repeat the exercise. Because of the existence of the deportation order, when the appellant entered Hong Kong illegally, he would have committed both offences of unlawfully remaining and breach of a deportation order. The underlying criminality for the two immigration offences was the same, namely the appellant’s unlawful presence in Hong Kong.

15.  The partly consecutive sentence of 3 months between the 2 immigration charges on the one hand and Yeung JA’s comment at para 17 on the other hand, however, is apparently not easy to reconcile.  One scenario which may possibly explain this slightly consecutive part is an unlawful remaining aggravated by a prolonged stay in Hong Kong.  Yet the defendant there had only arrived one day ago.   

Sentencing this defendant

16.  I take 1 ½ months as the starting point for the theft.  I reduce it by one-third for his plea of guilty.  The sentence is 1 month for the 1^st Charge. 

17.  I take 33 months as the starting point for the unlawful remaining, this being his sixth conviction.  I reduce it by one-third for his plea of guilty.  The sentence is 22 months for the 2^nd Charge.  I take 3 years as the starting point for the breach of a deportation order, this being his sixth breach and fifth conviction.  I reduce it by one-third for his plea of guilty.  The sentence is 2 years for the 3^rd Charge. 

18.  These 2 immigration charges constitute the same transaction and I make their sentences concurrent, this being a course more favourable to the defendant in view of the irreconcilable position in Pham Van Tuan (above).  However, the 1 month for Charge 1 shall be consecutive to such sentences.  The overall length is 2 years and 1 month.