HKSAR v. PHAM NGOC HUE

HCMA 874/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 874 OF 2001

(ON APPEAL FROM TMCC 2101/2001)

____________

____________

_______________

J U D G M E N T

_______________

1. The appellant, a Vietnamese female aged 34, appeared before D I Thomas Esq., magistrate, on 26 July 2001 and pleaded guilty before him to two charges, namely, of remaining in Hong Kong without the authority of the Director of Immigration having landed here unlawfully and being in breach of a deportation order.

2. The prosecution's summary of facts with which she agreed was that she was seen by a patrolling police officer in a village in the New Territories. She was unable, when asked, to provide proof of identity and thus was arrested. It later transpired that she had come illegally into Hong Kong three days before by hiding in the chassis of a container trailer and that she was the subject of a deportation order made against her in September 1997. Before sentence, she admitted 3 previous convictions which included the offence of remaining in Hong Kong without authority having come here unlawfully.

3. The magistrate sentenced her to imprisonment for 18 months on the first charge and 10 months on the second to be served partly consecutively to the end result that the total term was 24 months.

4. She appeals sentence upon the grounds the sentence of 24 months overall is manifestly excessive or wrong in principle.

5. Counsel representing the appellant in her appeal, Mr Chung, has no quarrel with the sentences imposed for both offences. It is his case that they should have been made to run wholly concurrently. In addition he says that having regard to the personal circumstances of the appellant, there are a strong humanitarian grounds for a reduction overall.

6. The magistrate relied on the Court of Appeal case of R v So Man King & Ors. [1989] 1 HKLR 142 in respect of the first charge. The court said that the appropriate sentence following a guilty plea was 15 months' imprisonment which should be enhanced for the offender who has been illegally in Hong Kong before whether or not prosecuted on that occasion. The sentence was directed primarily at those who come into Hong Kong from the PRC, but subsequent decisions have drawn no distinction with those offenders who come from Vietnam. The magistrate's sentence of 18 months cannot be faulted.

7. When considering the appropriate sentence for the second charge, the magistrate made reference to a number of cases where the sentence imposed for a similar offence had been appealed; in particular to HKSAR v Vu Thi Van Anh [2000] 2 HKLRD 286, where Gall J himself reviewed the sentence imposed in a number of deportation appeal cases. He formed the view that the range of sentences was between 12 and 16 months. Although the judgment is not clear on this point that would seem to be after a guilty plea. The magistrate, adopting a starting point of 15 months and then reducing that to 10 months to account for the appellant's plea, was, if anything, being lenient on her.

8. As I have said, counsel takes no issue with either sentence save that they should have been made concurrent. In this respect, he relies on several cases, one of which is HKSAR v Pham Van Sien HCMA 1127/1999, in which Nguyen J found that as the offences derived from the same incident the sentences should run concurrently. But this runs counter to what Duffy J, said in R v Bui Duc Tho MA 903/1995, when considering the sentencing process for the same two offences:

"it is obviously important that those in breach of deportation orders are seen to serve separate and distinct sentences for that offence......"

Gall J appeared to adopt the same position as Nguyen J when he dealt with the appellant in Vu Thi Van Anh, I have already cited. He said:

"Any combination of the two sentences I find appropriate by way of consecutive sentencing would rule the totality of sentence too high."

9. There are numerous cases before me in which, on appeal, the judge has been required to address the sentences imposed for these two offences. In some instances the court has ordered them to run partly consecutively and others wholly concurrently. Whilst this would have the appearance of an inconsistent approach, it seems to me rather that the appellate court pays heed to the right of a magistrate to impose such sentence as he or she regards appropriate having regard to the particular circumstances of the case and will interfere with the end result only if it is manifestly excessive or wrong in principle.

10. In Pham Van Sien, it was argued before the judge that all illegal immigrants should be treated in the same way irrespective of where they have come from. Thus the illegal immigrant from Vietnam who has been here illegally in the past and is the subject of a deportation order should not be treated more harshly than a repeat offender from the PRC for whom no deportation order has been made but who otherwise commits the same offence. In other words, both should be sentenced to an overall term that equates with an enhanced So Man King sentence. The judge in that case effectively favoured that approach. In ordering that the sentences of illegal entry and remaining and breach of a deportation order should run concurrently, he said:

"I take the view that because these offences arise from the same incident, namely, returning to Hong Kong after having previously being deported and entering Hong Kong without the authority of the Director of Immigration, the sentences for these two offences ought to be concurrent."

11. My view with respect to the judge is that he failed to pay heed to the nature of the deportation order, which is that after due consideration of the issues an administrative decision has been made in the interests of the community that the subject should be barred for life from entering Hong Kong. Thus to enter Hong Kong in whatever manner in defiance of that order is a separate and distinct offence from illegal entry. The criminality is therefore enhanced warranting at least partly consecutive sentences. I find support in this view from the judgment of Jackson J in HKSAR v Nguyen Van Hien HCMA947 of 1998:

"In my view, the offence of remaining in Hong Kong without authority is quite plainly a single offence. But if the offender has come here in direct contravention of a deportation order then that is another offence and it is quite separate and distinct. The learned Magistrate is perfectly entitled to view it as such and impose consecutive terms of imprisonment."

12. As a consequence, I find the magistrate's approach in making the two sentences partly consecutive as he did was the correct one.

13. There remains the issue of whether overall the term is manifestly excessive.

14. The appellant recounts through counsel a difficult life in Vietnam, the recent loss of her husband and a desperate need for support for her dependant family. It is a sad and all too familiar tale. It was all before the magistrate. My view is that her sentence overall was on the high side but I do not believe to the extent that it was manifestly excessive.

15. The appeal is dismissed.