R v. DONG DUC DAI AND OTHERS

HEADNOTE

[Policy considerations lay behind the guidelines in So Man King [1989] 1 HKLR 142 relating to the appropriate sentences for illegal immigrants from China, namely the need to deter would-be illegal immigrants from China in view of the enormous number coming to Hong Kong. Those guidelines do not apply to illegal immigrants from Vietnam, because the current level of illegal immigration from Vietnam is not as high as the level of illegal immigration from China when So Man King was decided.]

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 835 OF 1996

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J U D G M E N T

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1. On 21st June 1996 at Eastern Magistrates' Court, the three Appellants each pleaded guilty to two charges. The first was possessing a forged Vietnamese refugee card, and the second was remaining in Hong Kong without the lawful authority of the Director of Immigration. They were each sentenced to 15 months' imprisonment concurrent on each charge. They now appeal against their sentences. A 4th Appellant, Pham Hai Hung, filed a notice of appeal at the same time, but he filed a notice abandoning his appeal on 25th September 1996, and his appeal was therefore dismissed on its abandonment.

2. The Appellants are all Vietnamese. The 1st and 3rd Appellants have landed in Hong Kong before, but they were repatriated to Vietnam under the Voluntary Repatriation Scheme. They had both acquired a criminal record while they were in Hong Kong. The 1st Appellant was convicted of possessing a forged Vietnamese refugee card and escaping from a detention centre for Vietnam migrants, and was sentenced to terms of imprisonment totalling 4 months. The 3rd Appellant was convicted of what appears from a rather indecipherable document which I have to have been 3 charges of assault occasioning actual bodily harm. The record is unclear what his precise punishment was, though it looks as if it was a short term of imprisonment. The 2nd Appellant on the other hand had not been to Hong Kong before. All three of them arrived in Hong Kong within a few months of their arrest on 18th June. They had purchased the refugee cards for $1,500.00 each, and they were arrested at Chek Lap Kok attempting to get work on the site of the new airport.

3. The magistrate saw no reason for distinguishing the Appellants from illegal immigrants from China. As he put it in his Statement of Findings:

"The immigration laws are there to protect society as a whole and my perception was that most members of society would not consider Vietnamese nationality a ground for a reduction in the tariff sentence in these circumstances."

4. Was this approach permissible? Mr. Frank Veltro for the Crown has referred me to one case which touches on the question. In Bui Duc To (MA 520/94), Leong, J. held that the guidelines in So Man King [1989] 1 HKLR 142 relating to the appropriate sentences for illegal immigrants from China do not apply to Vietnamese migrants. He held that the case of Nguyen Duc Quang (MA 885/93) applied to them. However, in neither of those cases were the Appellants charged with remaining in Hong Kong without the lawful authority of the Director of Immigration. In Bui Duc To, the Appellant was charged with possessing a forged Vietnamese refugee card. In Nguyen Duc Quang, the Appellant was charged with possessing an unlawfully altered Vietnamese refugee card and escaping from a detention centre for Vietnamese migrants.

5. In my view, the magistrate was not right automatically to equate Vietnamese migrants who fled to Hong Kong with illegal immigrants from China for the purposes of sentence. Their criminality may be the same but that does not mean that their sentences should be. Policy considerations lay behind the guidelines in So Man King, namely the need to deter would-be illegal immigrants from China in view of the enormous number who were coming to Hong Kong. The guidelines in So Man King should only be applied to Vietnamese migrants if there is at present a large influx of Vietnamese migrants which needs to be stemmed by deterrent sentences. Mr. Veltro is not in a position to give me precise statistics, but he has told me that the current level of illegal immigration from Vietnam is not as high as the level of illegal immigration from China in 1989 when So Man King was decided. In these circumstances, I propose to address the question of what the appropriate sentences for these Appellants should be on their merits. In my view, the sentence on the second charge should be one of 9 months' imprisonment for the 1st and 3rd Appellants who have come to Hong Kong before, and 8 months' imprisonment for the 2nd Appellant who has not.

6. As for the first charge, the magistrate said:

"Of course I was aware of those cases that have dealt with the use of Vietnamese refugee cards more leniently, but they were not cases where the defendants were convicted illegal immigrants using the cards to work and remain in Hong Kong unlawfully."

7. I agree with the magistrate. I do not think that the sentences on the first charge should be any less than the sentences on the second charge. However, in the light of the reduction of the sentences on the second charge, I reduce the sentences on the first charge in relation to the 1st and 3rd Appellants to one of 9 months' imprisonment, and in relation to the 2nd Appellant to one of 8 months' imprisonment. Those sentences will be served concurrently with each other.

8. Accordingly, these appeals are allowed to the extent I have indicated.