HKSAR v. DO THI HUE

HCMA873/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.873 OF 2001

(ON APPEAL FROM TMCC 2194 OF 2001)

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J U D G M E N T

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1. This is an appeal against sentence only.

2. The appellant was convicted on her own plea at Tuen Mun Magistracy of an offence of breaching a deportation order made on 20 April 1993 prohibiting her presence in Hong Kong and of an offence of unlawfully landing and remaining in Hong Kong.

3. The facts of the two offences were quite simple. Having been made subject to a deportation order in 1993, the appellant left Hong Kong. She breached that order when she returned to Hong Kong on the occasion which resulted in the second charged offence. She had been in Hong Kong unlawfully for over a year when she was arrested in respect of that offence. The learned magistrate imposed a sentence of 10 months' imprisonment in respect of the offence of breach of a deportation order and a sentence of 15 months' imprisonment in respect of the offence of unlawfully entering and remaining in Hong Kong. He ordered the sentences to run consecutively. That is a total of 25 months' imprisonment.

4. The appellant complains primarily that the totality of sentence was too severe. She says that the sentences should have been ordered to run concurrently. I will deal with that ground firstly.

5. In So Man King [1989] 1 HKLR 142, the court was dealing with, so far as persons illegally in Hong Kong are concerned, the related offences of unlawfully remaining and possession of a forged or somebody else's identity card. It was argued on behalf of some of the appellants that different considerations applied to the different offences as they reflected different types of criminality. In its judgement, the Court of Appeal said :

"In the course of submissions we have been referred to many authorities that have dealt with the appropriate sentence for offences under section 38(1) of the Ordinance and the related offences of possession of a forged identity card or using that of another person.

Mr Cheng Huan for the appellants has argued strongly that there is a significant legal and moral distinction between the two kinds of offence. He suggests, borrowing the words of O'Connor, J. in R. v. Lam Shui Leung [1987] HKLR 57 at 58F, that commission of the latter offences enables the culprits 'to masquerade as persons entitled to be in Hong Kong', whereas persons such as the appellants make no such pretence.

It has to be acknowledged that there may be circumstances in which the use of such cards will be an aggravating feature, but in our view the authorities draw little, if any, distinction in the ordinary run of the mill cases. The substantial element in sentencing for all three offences is the unlawful presence in Hong Kong..." (emphasis added)

6. The judgment plainly accepts that so far as person's illegally in Hong Kong are concerned, the offences relate to one underlying culpability, that is, the unlawful presence of the offender in Hong Kong. In Lam Ping Chun (1989) 1 HKLR 161, the Court of Appeal affirmed this as a proper basis of sentence for those related offences. It said :

"... the substantial element in sentences passed for all three offences was the defendant's unlawful presence in Hong Kong, which in itself, in normal circumstances, merited a sentence of 15 months' imprisonment; the actual use of a forged or other person's identity card to obtain some further or particular benefit could be considered an aggravating feature."

7. On the reasoning evident in these two judgments, when a person unlawfully in Hong Kong is subject to sentencing for offences arising out of and directed towards his unlawful presence, then the court should approach sentencing on the basis that the underlying criminality is, in fact, his unlawful presence in Hong Kong.

8. In the presence case, given the fact that the appellant was made subject to a life-long deportation order in 1993, any subsequent offence of unlawfully landing and remaining in Hong Kong would necessarily and automatically carry with it an offence of breaching that deportation order. She could not be unlawfully present in Hong Kong without offending against the terms of that order. Accordingly both offences arise, so far as the appellant is concerned, out of the same facts. Indeed, the terms of section 43(1)(a) of the Immigration Ordinance, pursuant to which the first charge in this case was brought, relate to :

"Any person in respect of whom a deportation order is in force (and) is in Hong Kong in contravention of the order;"

It is evident from the terms of the sub-section that the offence is predicated on the offender's presence in Hong Kong.

9. That being so from the reasoning evident in So Man King, so far as person's illegally in Hong Kong are concerned; from the terms of the legislation which creates the offence in section 43(1)(a) and from general principle, both offences arising out of the same factual circumstances, the sentences imposed in this case should not have been wholly consecutive. There should have been, as a commencing point of sentencing considerations, an acknowledgment that the nexus of the two offences required some element at least of concurrence to reflect their common underlying culpability. That is, the appellant's unlawful presence in Hong Kong.

10. The concern of the learned magistrate was that if the sentences for both offences were ordered to run wholly concurrently, that the appellant would have escaped with no real penalty for the additional criminality represented by the breach of a deportation order.

11. As he succinctly put it in his statement of findings :

"In respect of the offence in charge 1, I considered that this was a flagrant flouting of a direction properly made in respect of the appellant"

and he goes on to say :

"... an offence of unlawful remaining may well trigger an offence of being in breach of a deportation order, in my judgment sentences for these two offences should not run concurrently. In my judgment, sentences should distinguish between those who have merely entered Hong Kong unlawfully and those who have positively disobeyed an injunction not to return to Hong Kong. If concurrent sentences are passed the service of deportation orders is rendered an empty exercise and the intention of the legislature and executive rendered nugatory."

12. The learned magistrate's concerns are well founded and well expressed. But the proper approach should have been, rather than ignoring the nexus between the two offences, to have considered the overall culpability of the appellant in terms of determining to what extent the sentences should have been ordered to run concurrently.

13. Miss Panesar, for the appellant has referred me to a number of cases where offenders were convicted of breach of deportation orders and of unlawfully landing and remaining in Hong Kong. They were HKSAR v. Vu Thi Van Anh HCMA289/2000; HKSAR v. Nguyen Thi Thoa HCMA110/1999 and R. v. Hoang Dinh Huy HCMA1530/1996.

14. In each of those cases, the appellant was sentenced to concurrent sentences. The totality of sentences ranged from nine months to fifteen months depending on the mitigation advanced. In HKSAR v. Cheema Asghar Sajjad in HCMA85/2000, the court held the appropriate sentence for a person in Hong Kong in breach of a deportation order was 12 months' imprisonment. The court relied on a line of authority going back to R. v. Corazon S Duazo, HCMA1124/1996 where Sears J treated the standard sentence for a breach of a deportation order as being 12 months' imprisonment.

15. It seems somewhat odd that a person unlawfully in Hong Kong and prosecuted contrary to section 38(1)(b), after plea, is in the normal course of events subjected to a sentence of 15 months' imprisonment, whereas a person in breach of a deportation order, which for practical purposes necessarily means he is in breach also of section 38(1)(b), is in the normal course after plea, the recipient of a lesser sentence of 12 months' imprisonment.

16. And indeed in a second line of authority represented by R. v. Talaw HCMA910/1996; R.v. Hoang Dinh Huy HCMA1530/1996 and HKSAR v. Pham Van Sien HCMA1127/1999, 15 months' imprisonment was held to be an appropriate sentence after plea for the offence of breaching a deportation order. In my judgment that is a sentence far more consistent with the realities and reason of the situation than the 12 months' imprisonment approved in the previous cases I have referred to. Indeed, one would have thought that breach of a deportation order could be said to be the significantly more serious offence, as it is an offence against an order directed particularly at the offender. That may well be why the court in HKSAR v. Luu Dinh Huy HCMA690/1997 imposed a sentence of 16 months' imprisonment for the offence.

17. That the legislature intended the offence of breach of a deportation order to be the more serious offence is perhaps also evident from the maximum penalty on indictment being seven years' imprisonment whereas so far as the offence of unlawfully landing and remaining in Hong Kong is concerned, the maximum sentence is three years' imprisonment. Accordingly, it seems to me that a sentencing magistrate could not be criticized for sentencing an offender who was in breach of a deportation order to a period in excess of 15 months' imprisonment after plea.

18. Returning to the issues raised in the appeal so far as the present case is concerned, for the reasons I have given, the magistrates justifiable concern that the appellant was in flagrant breach of a deportation order should have been reflected in a sentence, so far as that offence was concerned, of 15 months' imprisonment after plea. His further justified concern was that sentences imposed should distinguish between those who have merely entered Hong Kong unlawfully and those who positively disobeyed an injunction not to return to Hong Kong and that "if concurrent sentences are passed the service of deportation orders is rendered an empty exercise and the intention of the legislature and executive rendered nugatory", is properly met in my judgement, by ordering the sentences imposed not to to be served wholly concurrently but that some part be served consecutively so as to properly reflect the overall criminality of the appellant's offence. That was the approach approved by the Woo J. in HKSAR v. Nguyen Duy Trinh HCMA1111/1999.

19. Complaint is also made by Miss Panesar in her second and third grounds of appeal that the learned magistrate was wrong to have taken into account that the appellant had returned to Hong Kong on a previous occasion in 1996 in breach of the 1993 deportation order, as an aggravating factor. Suffice it to say that it is evident from the sentences imposed in respect of each of the two offences that he did not do so. Those sentences have no element of aggravation incorporated into them. Instead, the magistrate properly took the appellant's earlier breach of the deportation order into account in considering what weight to attach to the humanitarian matters advanced on behalf of the appellant before him. He said at the time of sentencing the appellant and having in mind her unlawful return to Hong Kong in 1996 :

"I take the view that you have cynically ignored the rules that govern your relationship with Hong Kong and that sets aside, in my judgment, any humanitarian considerations that might otherwise apply."

20. Finally, Miss Panesar relies upon a humanitarian ground comprising the facts that the appellant's husband whom she met whilst here illegally in 1996 and who went with her to Vietnam where they married has returned to Hong Kong with their child. That child was born in Hong Kong during the appellant's second visit here in breach of the deportation order and apparently at the moment suffers from some illness.

21. The appellant knew she was pregnant when she came to Hong Kong unlawfully in breach of the deportation order for the second time. The magistrate took the view that the appellant has cynically brought these events upon herself. With that I agree, they are not the basis of any reduction of sentence for humanitarian reasons. I might add the material provided to me in respect of the illness of the appellant's child does not suggest that illness is of such of an extent that it would warrant humanitarian concerns.

22. Accordingly, so far as this appeal against sentence is concerned, I set aside the magistrate's sentence in respect of the first charged offence and substitute a sentence of 15 months' imprisonment. I confirm the magistrate's sentence of 15 months' imprisonment in respect of the second charged offence. I order both sentences to be served concurrently except that three months of the sentence in respect of the second charged offence is to be served consecutively to the sentence imposed in respect of the first charged offence, that is a totality of 18 months' imprisonment.