HKSAR v. ABINER ARMANDO ESCALON AND ANOTHER

HCMA1331/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 1331/2000

(On appeal from of TWCC 3713/2000)

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JUDGMENT

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Introduction

1. The 2nd and 3rd appellants were each convicted, on their own plea, of one charge of Breach of Deportation Order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap. 115, Laws of Hong Kong. The 2nd appellant was sentenced to 16 months imprisonment while the 3rd appellant 2 years imprisonment. They appeal against the sentence.

2. It should be mentioned that after the case was adjourned for judgment, the 2nd appellant filed a Notice of Abandonment of Appeal dated 15th May 2001. As the 2nd appellant had proceeded to have his appeal argued fully by counsel, I refused to allow him to abandon the appeal.

Admitted facts

3. The admitted facts disclosed that on the day in question, both appellants were arrested on an airport bus as a result of an incident of alleged pickpocketing at the Ground Transportation Centre Airport Passenger Terminal. Subsequent fingerprint analysis showed that the 2nd appellant was the subject of a deportation order for life made on 27th August 1991 and the 3rd appellant was the subject of a deportation order for life made on 17th September 1986.

Grounds of appeal

4. Ms. Moosdeen, counsel for both appellants, submitted that the learned magistrate erred in taking the starting point of 2 years and 3 years respectively for each appellant. She complained that the sentence imposed on both appellants were wrong in principle and manifestly excessive. In respect of 3rd appellant, Ms Moosdeen also said the learned magistrate had erred in imposing a deterrent sentence in the present circumstances of the case and in concluding there was justification for a disparity in sentence between the appellant.

Arguments advanced

5. Ms. Moosdeen submitted that the learned magistrate placed inappropriate degree of significance on the appellants' previous convictions and circumstances of their arrest. She submitted that it is settled law that a man should not be sentenced for his previous convictions. The criminal record was only relevant in determining the degree of criminality on the offence to be sentenced. The record in itself was not an aggravating factor justifying an increase in sentence beyond what the facts of the particular case required.

6. Ms. Moosdeen also submitted that there was a suspicion that the learned magistrate had taken into account the fact that the appellants were arrested in connection with an alleged theft in sentencing. In other words, sentencing the appellant for the unproven theft. Ms. Moosdeen, however, frankly admitted she could not find anything in the "Reasons for Sentence" to support such an allegation. She said it was a mere suspicion.

7. To show the usual or normal sentence imposed for this offence, Ms. Moosdeen also took me through a number of authorities, including R v. Talaw MA 910/1996 (15 months on plea); HKSAR v Maqbol Araf MA 178/2000 (starting point 12 months after considering R v. Hoang Dinh Huy MA 1530/1996 where 15 months was considered appropriate); and HKSAR v VU Thi Van Anh MA289/2000 (to be mentioned later).

8. Ms. Moosdeen also drew my attention to the case of HKSAR v VU Dinh Phong MA 1091/2000 where Lugar-Mawson J. confirmed the approach of the trial magistrate in adopting a starting point of 3 years on a defendant who had been deported from Hong Kong to Vietnam on 5 occasions.

9. In respect of 3rd appellant, Ms. Moosdeen submitted that his record was not such as would have justified approaching this as a case where deterrence was paramount. Although the learned magistrate was entitled to sentence 3rd appellant on a deterrent basis, the learned magistrate had sentenced him too much on his record. The disparity in sentence creates a sense of grievance between 2nd and 3rd appellants.

Response from Prosecution

10. Mr. Madigan for the respondent submitted that the tariff for this offence is one of 15 months. He submitted that the case of HKSAR v VU Thi Van Anh [supra] showed the proper approach. The learned magistrate was entitled to impose the maximum sentence as a starting point on 3rd appellant. In respect of the 2nd appellant, Mr. Madigan submitted that he (the 2nd appellant) was fortunate to have received such a light sentence. Mr. Madigan accepted the principle that one should not receive a heavier sentence because of one's previous convictions, however, his submission was that when a person repeatedly commit the same offence, a balancing exercise was required and the previous convictions was a relevant factor to be taken into consideration.

Consideration and reasons for decision

11. In sentencing the 2nd appellant, the learned magistrate took into account that the appellant had pleaded guilty which was the only mitigating factor. He found that it was an aggravating feature in that the 2nd appellant had breached the deportation order on 3 previous occasions.

12. In respect of the 3rd appellant, the learned magistrate also took into account the plea which was the only mitigating factor. The 3rd appellant had breached the deportation order no less than 7 times. The learned magistrate noted that these breaches occurred on a regular basis and despite being sentenced to lengthy terms of imprisonment, the 3rd appellant was not deterred from re-offending. The learned magistrate decided to take the unusual step of adopting the maximum sentence of 3 years imprisonment as a starting point.

13. In HKSAR V VU THI VAN ANH [supra], the appellant was convicted of two charges, breach of deportation order and remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. She was sentenced to 9 months imprisonment in respect of each charge, sentences to run consecutively. Gall J. declined the invitation of the Department of Justice to declare his judgment a guideline or tariff. The judge nevertheless considered a number of authorities and noted that the range of imprisonment imposed for the offence of breach of deportation order was between 12 and 16 months. The learned judge accepted on principle that a breach of deportation order involved a previous unlawful entry the penalty and the penalty should therefore be higher than that for a first entrant, i.e. the 15 months imposed for a first time unlawfully remaining: R v So Man King & Others [1989] 1 HKLR 142. The learned judge however made it clear that there was no suggestion that the magistrates should be fettered in their sentencing and that they ought to take into consideration peculiar facts of the case before them. I respectfully agree with the learned judge's approach.

14. Although Mr. Madigan used the term "tariff" to describe the usual 15 months sentence passed for this offence, I take it that he has used the term loosely as there is indeed no tariff or guidelines for this offence. Gall J. had expressly declined to declare his judgment a guideline. The cited authorities are no more than examples of how the courts have dealt with the sentencing on this particular offence on the particular facts of each case.

15. I find no substance in Ms. Moosdeen's alleged suspicion that the learned magistrate might have taken into account the fact that the two appellants were arrested in connection with theft and sentenced them on the unproven theft. The learned magistrate was doing no more than reciting the admitted facts showing under what circumstances the appellants were arrested.

16. The principle that a person should not be sentenced for his previous record was accepted as correct by both the appellant and the respondent. Although the learned magistrate did not specifically mentioned the above principle in his "Reasons for Sentence", I find no basis to say that he had in fact sentenced the appellant on their previous records. The learned magistrate had taken into consideration the fact that these two appellant had repeatedly breached the deportation order. Clearly such was an aggravating feature he was entitled to take into consideration.

17. Bearing in mind that the 15 months imposed in So Man King [supra] was on a plea of guilty, which assumes a starting point of 22 1/2 months after trial, a starting point for a breach of deportation order, in the absence of peculiar circumstances, should be higher than that of 22 1/2 months to reflect the greater gravity. In the case of 2nd appellant, it is hard to see how a starting point of 24 months could be said to be either wrong in principle or manifestly excessive. A person who had been deported for life was an undesirable and unwanted candidate for entry in Hong Kong. A repeated offender shows a total disregard for our immigration law. By adopting a starting point of two years, the Learned Magistrate was, in my view, lenient to the 2nd appellant who, on this occasion, had entered Hong Kong illegally for the fourth time.

18. The 3rd appellant was noted to have 'regularly' breached the deportation order on no less than 7 occasions. He is a repeated offender and sentences he had received in the past failed to deter him. Not only that this is an appropriate case for a deterrent sentence to be imposed, as agreed by Ms. Moosdeen, the learned magistrate was fully entitled in the particular circumstances here to adopt the maximum sentence of 3 years as a starting point. To echo the words of Lugar-Mawson J. in VU Dinh Phong [supra], (at page 5),

"............It is only by sentencing him to serve the maximum period of imprisonment permitted for the jurisdiction of the court in which he was tried that there can be any hope that he gets the message that he is not permitted to be here'.

The sentence of 2 years imposed on a plea was therefore neither wrong in principle nor manifestly excessive.

Judgment

19. For these reasons the appeal by both appellants is dismissed.