HKSAR v. NGUYEN TUAN ANH

HCMA 1091/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1091 OF 2003

(ON APPEAL FROM KCCC 15199/2003)

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J U D G M E N T

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1. The Appellant pleaded guilty in the Magistracy to one charge of Breach of Deportation Order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap. 115 and a second charge of Remaining in Hong Kong without the Authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115.

2. The facts were that the Appellant went to Sham Shui Po Police Station and surrendered himself on 14 September 2003. He had been in Hong Kong since August 2003. Police discovered that he was in breach of a 1998 Deportation Order. He was sentenced to 2 years' imprisonment on the first charge; 16 months' imprisonment on the second and 8 months of the second sentence was ordered to run consecutively to that for charge 1. He appeals against sentence on the ground that it was too severe.

3. The Magistrate imposed the sentences having taken into account the Appellant's previous record. He originally came to Hong Kong as a boat person and was detained. He escaped from the detention centre in 1991 and was sentenced to 3 months' imprisonment. In 1994 he was convicted of Possession of Forged Documents and also of escaping from a detention centre. Later he was sent back to Vietnam.

4. In 1997, he returned to Hong Kong illegally and again was found to have false documents in his possession. He was sentenced to 15 months' imprisonment. A Deportation Order was made by the Secretary for Security on 5 March 1998 and the Appellant was deported. In December 1998, the Appellant returned to Hong Kong unlawfully thus breaching his Deportation Order. He was sentenced to 20 months' imprisonment and was released in about April 2003. Undeterred he returned to Hong Kong in August 2003 and it is from that visit the present offences derive.

5. The Magistrate noted that the Appellant claimed to be HIV positive, but a medical report ordered by the Magistrate showed that was not the case. The Magistrate had the Appellant's previous history in mind when sentencing. In his Reasons for Sentence, he stated:

"In my view, the time has come for the court to look to the maximum available sentence so far as breach of deportation order is concerned. The maximum available in the magistracy is three years' imprisonment. I take that as a starting point and I reduce it to two years to reflect your plea of guilty for breach of deportation order.

For unlawfully remaining in Hong Kong, the maximum available, in fact, in the magistracy is two years' imprisonment. I take that as the starting point and I reduce it to 16 months."

The Magistrate thereafter made the sentences partially consecutive.

6. On appeal, the Appellant asked for his sentence to be reduced because he had surrendered to the police. That is true, but the Magistrate did take that factor into account in part by the discount for plea. The Appellant was a repeat offender who had not been deterred by previous sentences. The present sentences are entirely proper and this appeal is dismissed.