R. v. NGUYEN QUOC THUAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL Nos. 338 and 391 OF 1997

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J U D G M E N T

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1. Two appeals are before me : R. v. Nguyen Quoc Thuan (MA 338/97) and R. v. Pham Quang Phuc (MA 391/97). In the first case, the appellant appealed against the sentence of 15 months imprisonment imposed following his conviction by his own plea to the offence of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. In the second case, the appellant also appealed against the sentence of 15 months imposed following his guilty plea to the same offence. The two appellants are Vietnamese and they were represented by Mr Chan. The main ground of appeal was that the sentences were imposed following the guideline in R. v. So Man King and Other (1989) 1 HKLR 142 which was intended for illegal immigrants from China. There should be a distinction between illegal immigrants from China and those from Vietnam so that the sentences imposed on the two appellants were either wrong or manifestly excessive. The respondent agreed for both appeals to be heard together since they involved the same issue, namely whether the sentencing guidelines in So Man King apply to illegal immigrants from Vietnam.

2. Mr Chan relied on a number of authorities. Firstly, he submitted that So Man King decided that no significant distinction was to be made between the offence of remaining in Hong Kong unlawfully and the related offences of unlawful possession and use of identity cards and 15 months imprisonment after a plea of guilty was the norm. InNguyen Duc Quang MA 885/93, Yang CJ suggested that for possession of a forged Vietnamese Refugee Card, the starting point after trial should be one of 15 months. Mr Chan submitted that on that basis, this was a distinction in sentencing Vietnamese and Chinese illegal immigrants. He referred to R. v. Bui Duc Tho MA 520/94, R. v. Nguyen Thi Tham MA 747/96 and Tran Quoc Toan MA 60/96 where R. v. Nguyen Duc Quang had been referred to and the starting point after trial of 15 months imprisonment was adopted for possession of a forged Vietnamese Refugee Card. Secondly, Mr Chan referred to R. v. Dong Duc Dai MA 835/96 where Keith J drew a distinction between illegal immigrants from Vietnam and illegal immigrants from China and considered that So Man King was decided in the light of political considerations to deter would be illegal immigrants from China. He did not follow So Man King. Sears J. in R. v. Nguyen Van Doan and Others MA 1478, 1493 and 1498/96 did not agree with Keith J.

3. Mr Chan also referred toR. v. Pham Duy Son and Others Crim App.631/96 where the Court of Appeal considered that the guidelines in So Man King should be adhered to in sentencing Vietnamese illegal immigrants. However, Mr Chan sought to distinguish that case on the ground that the appellants in that case were the captain and crew of a ship who brought illegal immigrants from Vietnam to Hong Kong.

4. It should be noted thatBui Duc Tho, Tran Quoc Toan and Nguyen Thi Tham are all concerned with possession of a forged Vietnamese Card which could be an offence independent of the offence of remaining in Hong Kong unlawfully. However, all three cases do not draw any distinction between the two types of illegal immigrants in so far as the offence of remaining in Hong Kong after having landed in Hong Kong unlawfully is concerned. None of them indicate that there should be a departure from the guidelines in So Man King. Gall J. in Nguyen Thi Tham had this to say in relation to So Man King :

"The case of So Man King was aimed to cure a particular problem. At the time it was decided there was an ever-increasing influx of illegal immigrants from the Mainland. The question I must answer is whether or not it should apply also to the influx of illegal immigrants from Vietnam. It is clear that before these courts, there are a regular number of Vietnamese illegal immigrants who are second-time or third-time returnees to Hong Kong. In my view, the problems facing this territory from Vietnamese illegal immigrants is so akin to that we have faced from Chinese illegal immigrants, that the principles enunciated in So Man King hold good for Vietnamese illegal immigrants."

5. Litton JA in R. v. Wu Chun MA 693/94 stated that the policy behind the sentence in So Man King was deterrence and the sentence of 15 months imprisonment was to produce the desired effect and to bring to uniformity the sentence for offences of this nature. He said :

"The evidence adduced before the court in So Man King suggested that whilst the more lenient sentences ranging from about six to twelve months' imprisonment had little impact, the cranking up of the sentence to 15 months' imprisonment had the desired effect; it resulted in the figures of illegal immigrants detected in June and July 1988 ..."

6. Thus, there should be no distinction between illegal immigrants from Vietnam and those from China. Both bring about social and economic impact to the society of Hong Kong and to draw any distinction would be artificial.

7. The appellant in MA 338/97 had been in Hong Kong illegally before. He was repatriated and he sneaked back into Hong Kong against a deportation order. If So Man King applies, he should be sentenced to at least 18 months after plea. The sentence of 15 months imprisonment imposed by the magistrate is neither wrong nor manifestly excessive. On totality, the total of 20 months including the sentence of 8 months for breach of deportation order, a sentence against which he had not appealed, is also not wrong.

8. Equally the sentence on the appellant in MA 391/97 is correct.

9. The appeals in both cases must be dismissed.