HKSAR v. NGUYEN VAN THUY ALSO KNOWN AS DO VAN DUNG

DCCC 94/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 94 OF 2015

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REASONS FOR SENTENCE

1.  Nguyen Van Thuy on 19 March 2015 you pleaded guilty to one charge of remaining in Hong Kong without authority having landed unlawfully, contrary to section 38(1)(b) of the Immigration Ordinance[1], (charge 1); and one charge of breach of deportation order, contrary to section 43(1)(a) of the Immigration Ordinance (charge 2).

2.  In summary on the 1 September 1992 you were made the subject of a deportation order prohibiting you from coming to Hong Kong for life[2].  

3.  On 19 December 2014 you were intercepted by the police.  You were arrested when you showed a Vietnamese passport[3] in which no entry into Hong Kong or permission to remain in Hong Kong could be found.  Under caution you admitted smuggling into Hong Kong two days earlier knowing you were in breach of the deportation order.  

4.  During mitigation Mr Tong submitted a letter dated 2 February 2015[4] from the Removal Assessment Section of the Immigration Department showing your intention to seek non-refoulement protection on the grounds of torture.  

5.  The prosecution were unaware that a claim for non-refoulement protection had been made by you.  The prosecution policy is not to proceed with immigration offences related to the claim until the conclusion of the assessment of the claim.  If the claim is successful then the prosecution would not proceed with the immigration offences. Miss Yip therefore applied for an adjournment to ascertain the progress of the claim and to decide whether or not to proceed.

6.  The case was adjourned to 19 May 2015 when the court was informed that you lodged your claim on 21 January 2015.   The case was further adjourned to 19 November 2015 pending determination of the claim.  On 19 November the court was informed that the screening interview would take place on 27 November 2015.  The case was therefore adjourned until today pending the result of the screening interview. 

7.  Today I am told your claim was rejected and that you have filed an appeal against that decision.   Although it is expected the decision of the Appeal Board will be made known soon, perhaps within a few months, you do not wish to wait for that decision and ask to be sentenced today.  Taking into account that you pleaded guilty almost one year ago; the likely sentence to be imposed and that you wish the court to proceed with sentence and not wait for the result of the Appeal Board, I am satisfied that sentence should not be further adjourned.

8.  In passing sentence I have carefully considered everything said on your behalf by Mr Tong, including that you came to Hong Kong via China because you were being chased by a loan shark in Vietnam.     Mr Tong submitted that you came to Hong Kong to file your claim for non-refoulement protection and not to commit other offences. 

9.  In this regard you went to the Immigration Department on 18 December 2014 to make your claim however you were requested to return on 6 January 2015[5].  Mr Tong accepts that by being told to return on 6 January 2015 this did not amount to you being given permission to remain in Hong Kong until that time.

Unlawful remaining

10.  In R v. So Man King[6]the Court of Appeal held that allowing for a plea of guilty a sentence of 15 months imprisonment (starting point of 22½ months) should be used as the basic guideline unless there are strong humanitarian considerations.  The Court of Appeal further held that a court should take into account, by upward adjustment, any previous unlawful entry.

Breach of deportation order

11.  There are no guideline sentences for breach of deportation order.  Generally the starting point for a first breach is one of 27 months imprisonment (see for example HKSAR v Ta Dinh Son[7]). 

12.  Since 1992, when you were deported for life, you have entered Hong Kong in breach of the deportation order on five occasions in 1995, 1998, 2000, 2005 and 2008 when you received sentences ranging between 15 months and 30 months imprisonment.   

13.  Repeat offending is a significant aggravating feature justifying enhancement of the starting point of 27 months imprisonment.  In HKSAR v Ta Dinh Son the Court of Appeal held that 4 years imprisonment was the appropriate sentence for the 7th breach of a deportation order.    

14.  In HKSAR v Nguyen Thi Bich Thoa[8], submitted by Mr Tong, the applicant was sentenced to concurrent sentences of 18-28 months imprisonment having pleaded guilty to using a forged identity card; unlawfully remaining and breach of a deportation order.  In refusing leave to appeal Macrae JA said that the applicant may be considered to have been very fortunate in the sentence she received.

15.  Taking into account this is your sixth unlawful entry into Hong Kong I am satisfied the starting point for charge 1 is to be increased to 30 months imprisonment and your sixth breach of deportation the starting point for charge 2 is to be increased to 45 months imprisonment. 

16.  Giving you full credit for your pleas of guilty you are convicted and sentenced to 20 months imprisonment on charge 1 and to 30 months imprisonment on charge 2. Both offences arising out of your unlawful presence in Hong Kong I order the sentences to be served concurrently.  You will therefore serve a total sentence of 30 months imprisonment which is the same total sentence imposed last time you entered Hong Kong in breach of the deportation order.  Should you return to Hong Kong again the sentence will no doubt be higher next time.