HKSAR v. BUI VAN TRUNG

HCMA596/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.596 OF 2004

(ON APPEAL FROM KCCC 5900 OF 2004)

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J U D G M E N T

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Background

1. The appellant pleaded guilty on 28 May 2004 in Kowloon Magistracy to two charges. By charge 5 he was charged with having landed in Hong Kong unlawfully he remained without the authority of the Director of Immigration, contrary to section 38(1)(b) of the Immigration Ordinance, Cap.115. By charge 3, he was charged with being a person in respect of whom a deportation order was in force, was in Hong Kong in contravention of that order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap.115. Both offences were alleged to have been committed on 28 April 2004.

Facts

2. The appellant was arrested together with other men who were charged with other offences in premises in Mongkok on 28 April 2004. The appellant admitted to police that he was in Hong Kong unlawfully, claiming to have arrived via the Mainland on 10 April 2004. Subsequent inquiries revealed that the appellant was the subject of a deportation order in respect of which he was in breach.

Reasons for sentence

3. The learned magistrate noted that the appellant's criminal record was "significant". In 1994 he had been sentenced to six years' imprisonment for manslaughter. In 1998, to a total of 31 months' imprisonment in respect of a conviction for burglary, possessing a false instrument and remaining in Hong Kong without the authority of the Director of Immigration having landed unlawfully in Hong Kong. Following those convictions and sentence, a deportation order was made in respect of the appellant. In June 2000, the appellant was convicted again of the offence of remaining in Hong Kong without the authority of the Director of Immigration having landed unlawfully in Hong Kong. In addition, he was convicted of possession of dangerous drugs and for the first time of being in breach of a deportation order. In total he was sentenced to 18 months' imprisonment. In December 2001, the appellant was convicted of theft and again of the offence of remaining in Hong Kong without the authority of the Director of Immigration having landed unlawfully in Hong Kong and a second breach of the deportation order. In total he was sentenced to 29 months' imprisonment.

4. As the magistrate observed, in those circumstances, the sentence in respect of which the appellant appeals were his third conviction for a breach of a deportation order and his fourth conviction of unlawfully remaining in Hong Kong. Of that fact the magistrate said : "This history greatly aggravated the present offences." In the result, the magistrate stated, that he took 27 months' imprisonment as a starting point in respect of each charge. For a discount for pleading guilty, he reduced both sentences to 18 months in respect of each charge.

5. Determining that in principle the sentences in respect of the offences of which the appellant had been convicted ought to be served consecutively the magistrate turned to a consideration of totality. Noting that on the last occasion that the appellant had been sentenced for these very same offences - he had been sentenced to a total of 29 months' imprisonment, which sentence had not deterred the appellant from returning unlawfully to Hong Kong the magistrate imposed a sentence of three years' imprisonment by ordering that the whole of the sentence of 18 months' imprisonment imposed upon one charge be served consecutively with the other.

Perfected grounds of appeal against sentence

6. Mr Burkett, on behalf of the appellant, invited the court to note that the sentence of three years' imprisonment imposed upon the appellant was the maximum of the magistrate's jurisdiction. In those circumstances he submits that the appellant had received no discount from his total sentence to reflect his pleas of guilty. Accordingly, he submits that the total sentence imposed upon the appellant of three years' imprisonment was manifestly excessive and wrong in principle.

7. In support of those submissions, Mr Burkett relied, in particular, upon the judgment of the Court of Appeal in HKSAR v. Li Yan [1998] 4 HKC 12. In that case, the applicant had pleaded guilty to two offences of robbery and one offence of remaining in Hong Kong without the authority of the Director of Immigration. The deputy judge in the District Court imposed sentences of six and five years' imprisonment respectively in respect of the robberies which sentences were ordered to run concurrently one with the other. However, in respect of the unlawful remaining, he imposed a sentence of 12 months' imprisonment which was ordered to run consecutively to the sentences in respect of the robberies. Thereby, the deputy judge imposed sentences totalling seven years' imprisonment, the limit of his jurisdiction. Mortimer VP reviewed the authorities and posed the question (14H) :

"The first question for this court is whether in those cases where an appropriate sentence after discount is seven years or more, policy and justice require a further one-third discount from the seven years maximum, or whether, some lesser discount is appropriate. ..."

8. In answer to that question he went on to state (15A-B) :

"The cases cited above demonstrate - and it is self-evident - that justice requires a further meaningful discount should be given from the maximum of seven years after plea in those cases which would attract seven years or more as the proper sentence which the court ought to impose. This is to give the accused some benefit for his plea of guilty."

9. Having rejected the proposition that the one-third discount ought to apply to the maximum jurisdiction of limited seven years regardless of the proper starting point he went on to say (15C) :

" ... In cases where the appropriate sentence to be imposed after discount is seven years or more, a meaningful discount from seven years should be given in order to give some benefit for the plea. The same applies if the appropriate sentence is so near seven years that the discount is not meaningful. As to what is meaningful in the particular circumstances, this must be left to the sentencer, but rarely would a reduction of less than one year be so considered."

10. In that appeal the Court of Appeal quashed the sentences imposed by the deputy judge in respect of the robbery charges. In substitution they imposed sentences of four years and eight months on each charge to which the sentence of 15 months' for the unlawfully remaining charge was made consecutive. Of the resulting total sentence of five years and eleven months the court described it as "a meaningful discount from the seven years maximum."

11. Mr Burkett also points to the judgment of the Court of Appeal in HKSAR v. Lui Cho Hung, CACC216/2000 (unreported) as subsequent approval by the Court of Appeal of the approach identified by Mortimer VP in HKSAR v. Li Yan.

The respondent's submissions

12. Miss Grace Chan, for the respondent opposes Mr Burkett's submission. She submits that the principle of "meaningful discount" from the jurisdictional limit of sentence only applies when the appellant has been placed in the wrong jurisdiction in respect of the specific charge. Thus, if the charge was one of robbery and in the circumstance of the case the appropriate starting point was 11 years' imprisonment, after plea and a discount of one third, the resulting sentence would be outwith the sentencing jurisdiction of the District Court. In those circumstances, she submits, the judge in the District Court could not impose a sentence of seven years' imprisonment but had to give the "meaningful discount" described in HKSAR v. Li Yan.

13. She submits that the same principle does not apply if two or more charges are brought in, say the District Court, where the starting point is the maximum or less than the maximum of seven years' imprisonment. In those circumstances, she says, for example, if the starting point for each charge was six years' imprisonment, after plea and a discount of one third, the District Court judge would be entitled to impose sentences of four years' imprisonment and make three years of the sentence imposed in respect of one charge consecutive to that of the other making a total of seven years' imprisonment, the maximum jurisdiction in the District Court. That, she submits, does not offend the entitlement to a "meaningful discount" identified in HKSAR v. Li Yan.

14. I reject the submissions of the respondent. I am satisfied that if the prosecution make an error in choosing the jurisdiction in which to have a matter tried either in respect of a single charge, where the appropriate sentence after discount from a starting point is the maximum or greater than the maximum of the court's jurisdiction, or as in circumstances whereby a combination of charges are brought each with a starting point within the jurisdictional limit and sentencing policy requires that the sentences be consecutive one with the other the court must, nevertheless, reflect credit for the pleas of guilty by imposing a total sentence less than the jurisdictional limit. In those circumstances, the observation of Silke JA in R. v. Kwok Chi Kwan and Another [1990] 1 HKLR 293 at 296C are apposite :

" ... then a defendant may be said to have an advantage given him. But this is an advantage unsolicited by a defendant and it should not result in what can be termed the legitimate expectation of some recognition of a plea being denied him."

15. The justice of the approach of the Court of Appeal in HKSAR v. Li Yan can be tested by reference to the facts in this appeal. Were there two defendants of similar circumstances facing these two charges and the one pleaded guilty and the other stood his trial and was convicted would it be appropriate to impose the same sentence, namely three years' imprisonment that being the maximum on each of the defendants? One has only to pose the question to see the injustice. The legitimate expectation of the defendant who had pleaded guilty to a discount for his plea of guilty would have been denied.

16. In the alternative, Miss Chan submits, as I understand her submission, that the criminal record of the appellant in the context of these offences, this being his third offence of breach of a deportation order and his fourth offence of remaining in Hong Kong without the authority of the Director of Immigration having landed unlawfully is such that the magistrate was entitled to impose the maximum sentence as a deterrent. I reject that submission. In my judgment, if in the process of arriving at the appropriate sentence to impose the court arrived at the maximum of its jurisdiction, three years' imprisonment, it remained necessary, for the reasons set out above, to discount that sentence from the maximum of the jurisdictional of power to reflect the pleas of guilty.

17. In HKSAR v. Li Yan, the Court of Appeal had indicated that a "meaningful discount from seven years should be given in order to give some benefit for the plea" and had added "as to what is meaningful in the particular circumstances, this must be left to the sentencer, but rarely would a reduction of less than one year be so considered."

18. Mr Burkett indicated that he did not suggest that a one-year discount would be appropriate nor did he argue against the suggestion that an arithmetic parallel be taken, namely one-seventh of the maximum jurisdiction of three years' imprisonment.

Conclusion

19. In principle the considerations relevant to answering the questions posed by Mortimer VP in respect of the jurisdiction of the District Court apply in like manner to the magistrates' court. Although counsel did not refer the court to any specific decision dealing with the issue in the context of the jurisdiction of the magistrates' court I note that the editors of Cross on Sentencing in Hong Kong (4th edition) state at page 448 :

"Like principles to those which have evolved in the District Court apply in the magistrates' court."

20. In my judgment that assertion is correct.

21. In the result, I quash the order of the magistrate that the sentences of 18 months imposed upon the appellant in respect of each of the two charges be served wholly consecutively. In substitution, I order that 12 months of the sentence of imprisonment of 18 months imposed in respect of the third charge, breach of the deportation order, be served consecutively to the sentence of 18 months' imprisonment imposed in respect of charge 5, remaining in Hong Kong without the authority of the Director of Immigration having landed in Hong Kong unlawfully. In the result, the total sentence of imprisonment imposed upon the appellant is two years and six months' imprisonment.