HKSAR v. NGUYEN VAN HIEN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 947 OF 1998

____________

____________

_______________

J U D G M E N T

_______________

1. This is an appeal against sentence imposed upon the appellant at the South Kowloon Magistracy following his pleas of guilty to offences of (a) Possessing a false instrument (b) Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully and (c) Breach of a Deportation Order.

2. In respect of the first offence the appellant was sentenced to a term of 6 months' imprisonment; in respect of the second to a term of 15 months' imprisonment; and in respect of the third to a term of 6 months' imprisonment. The sentences in respect of the first and second offences were expressed to be concurrent and the sentence in respect of the third was expressed to be consecutive. The total sentence imposed therefore upon the appellant was one of 21 months, and it is against that total sentence which he appeals.

3. At paragraph 10 of his detailed and helpful Reasons for Sentence the learned Magistrate had this to say:

"I considered whether to impose concurrent or consecutive sentences. Notwithstanding that the offences were all separate and distinct offences and warranted consecutive sentences, taking into account the totality .... I ordered that the sentences for the offences of possession of a false instrument and unlawful remaining should be concurrent while that for breach of (the) deportation order should be consecutive to these sentences."

4. The grounds of appeal before me are threefold:

1. The Magistrate erred in deciding that there was no, or insufficient humanitarian justification for departure from the 'tariff' sentence.

2. The Magistrate erred in concluding that the sentence for the breach of the deportation order should be consecutive and

3. That in all the circumstances the totality of the sentence was manifestly excessive.

5. Mr McGowan who appeared for the appellant before me commenced his argument by saying that no issue was taken as regards the individual sentences imposed. What was at issue was the totality of sentence to be served i.e. 21 months. If I understood his argument fully he was submitting that all of the sentences should have been concurrent.

6. In support of this argument Mr. McGowan referred me to a number of authorities which I need not repeat here. Suffice it to say that Mr. McGowan urged upon me in support of a humanitarian approach the facts that the appellant -

(a) had effectively been deprived of his Vietnamese Citizenship.

(b) cannot work marry or support a family there and

(c) returned to Hong Kong, having previously been deported, not to commit crime but to assist in the bringing up of his child and to marry his girl friend.

7. Mr. Lee for the Respondent in reply has suggested to me that the appellant was the author of his own misfortune and if the circumstances which he now finds himself in can be viewed with a degree of sympathy that view would not justify my interfering with what is otherwise an entirely proper sentence. I am inclined to agree with that suggestion.

8. As to the question of whether the learned Magistrate properly ordered that the sentence for the breach of deportation order be served consecutively, I have considered all that has been said to me as well as the fact that the appellant was deported in 1994 following the completion of a 15 month prison sentence imposed on him for the offence of unlawful wounding.

9. 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, and the learned Magistrate was perfectly entitled to view it as such and impose consecutive terms of imprisonment.

10. It is for these reasons that this appeal is dismissed.