HKSAR v. LE VAN THANH

DCCC553/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 553 OF 2012

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Reasons for Sentence

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The Charges

1.  The defendant pleaded guilty to a charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.  Such offence is contrary to section 38(1)(b) of the Immigration Ordinance, Cap.115, and a charge of breach of deportation order.  Such offence is contrary to section 43(1)(a) of the Immigration Ordinance, Cap.115.

The Facts

2.  The facts of the case can be summarised as follows.

3.  About 1.20 pm on 27 May 2012, PC 34209 (PW1) spotted the defendant acting furtively, and therefore, intercepted him for enquiry at the Jade Market of Tung Chau Street Park, Sham Shui Po, Kowloon.

4.  The defendant then produced his Vietnamese passport to PW1, where there was no arrival chop of the Director of Immigration of Hong Kong.

5.  Upon enquiry, the defendant claimed:

(1) that he had sneaked into Hong Kong two days ago by hiding underneath a truck;

(2) that he wanted to obtain medical treatment in Hong Kong, as he had contracted AIDS and tuberculosis; and

(3) that he knew that was subjected to a deportation order and was prohibited from entering Hong Kong.

6.  A fingerprint check also confirmed that the defendant was subjected to a Deportation Order No. IMM/CR56/93, which was issued on 23 February 1993.

Background of the defendant and mitigation

7.  The defendant, aged 48, is a Vietnamese.  Before his present arrest on 27 May 2012, he was living alone under Tung Chau Street bridge in Hong Kong.  The defendant claimed that he sneaked into Hong Kong two days ago for medical reasons.

8.  The defendant has had his first criminal conviction as early as in 1990. There were altogether 13 previous convictions in all these years, relating to some 29 serious offences, including trafficking in dangerous drugs and wounding.

9.  He had been in and out of prison for numerous occasions upon terms ranging from 2 months to 30 months.

10.  He was last released from prison and deported to Vietnam in April 2011.  About a year’s time, he returned and committed the offences in the present case.

11.  This is the sixth time he came to Hong Kong illegally, and the seventh time he was in breach of the deportation order.  He is undoubtedly a recidivist - a repeat offender.

Guidelines in sentencing

(1) Illegal remaining charge

12.  For the unlawful remaining offence, a standard sentence of 15 months imprisonment for a guilty plea is proper for a first offender with no aggravating circumstances (see R v So Man King [1989] 1 HKLR 142).

13.  The court should take into account by upward adjustment any previous unlawful entry, whether resulting in prosecution or not, and also other circumstances which may aggravate the offence (see CACC 54/2011, CACC 221/2011 and HCMA 360/2011).

(2) Breach of deportation order charge

14.  A breach of deportation order had been reckoned by the courts of Hong Kong to be a more serious offence than that of the illegal remaining.

15.  The Court of Appeal considered a sentence of 18 months imprisonment upon plea for a first-time breach of deportation order was appropriate, and a sentence of 21 months imprisonment for a second breach of deportation order was justified (see HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762).

Starting point and Sentence

16.  The lengthy sentences imposed in the past had obviously not deterred the defendant from re-offending.  As such, upward adjustments in sentencing should be made for repeat offenders like the defendant.

17.  Having fully considered all the circumstances of the case and that of the defendant, the mitigation put forward by the defence lawyer, the sentencing guidelines laid out by the Court of Appeal, and the totality principle (see HKSAR v Pham Van Hung, CACC 14/2011), the starting point for sentence of illegal remaining offence and breach of deportation order offence adopted by this court would be 30 months’ and 42 months’ imprisonment respectively.

18.  The defendant is entitled to one-third discount to his sentences upon plea, and this would reduce the above-mentioned terms to 20 months’ and 28 months’ imprisonment respectively. 

Concurrent or consecutive sentence?

19.  Having also fully considered the totality principle, the overall culpability of the defendant and the criminality of the offences, this court now orders 8 months of the sentence in Charge 2 to be served consecutively to the sentence in Charge 1.

20.  The defendant has to serve 28 months’ imprisonment in totality.