HKSAR v. NGUYEN VAN LY

HCMA484/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 484 OF 1999

-------------

--------------

------------------------

J U D G M E N T

------------------------

1. The Appellant pleaded guilty to two offences before the Magistrate, Mr Joseph Yau. The first offence was theft, contrary to s.9 of the Theft Ordinance, Cap.210, in that on 27 April 1999, at Park'N Shop, Pierhead Plaza, Tuen Mun, he stole one bottle of wine, three pieces of soap and one brush valued at $42 in total, the property of Park'N Shop Limited. The second offence of which he was convicted was remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to s.38(1)(b) of the Immigration Ordinance, Cap.115, in that on the same day in Tuen Mun, he, having landed in Hong Kong unlawfully, remained in Hong Kong without the authority of the Director of Immigration.

2. In passing sentence, the Magistrate had this to say :

" In sentencing the defendant for the second charge I have considered the authority of R v So Man King and Others [1989] 1 HKLR 142 which held that a starting point of 15 months imprisonment should be used for a Chinese illegal immigrant who had pleaded guilty to a charge of remaining in Hong Kong without the authority of the Director of Immigration and who had a clear record. In R v Nguyen Thi Tham MA 747/1996 it was held that the principles in R v So Man King applied equally to illegal immigrants from Vietnam and that the proper sentence for a plea of guilty should be 15 months imprisonment.

Pursuant to these authorities I adopted a starting point of 15 months imprisonment. I took into consideration that the accused had a clear record and his wife was pregnant and due to give birth in May. I reduced the sentence by three months and sentenced the accused to 12 months imprisonment."

3. In my view, the two factors, namely, that the accused had a clear record and his wife being pregnant, were not, in the particular circumstances of this case, mitigating factors relating to the crime of illegally landing in Hong Kong and remaining in Hong Kong. So Man King is the authority to say that 15 months imprisonment should be a proper sentence for an offender guilty of unlawfully entering and then remaining in Hong Kong after a plea of guilty.

4. I am of the view that, therefore, the proper sentence should have been 15 months imprisonment for the second charge. I would not interfere with the Magistrate's decision in imposing one month's sentence for the first charge - the theft. However, I do not see any factor, taking into account the totality of the sentence, to make the two sentences run concurrently, and I think the two sentences should run consecutively.

5. In his Notice of Appeal against Sentence which he signed, the Appellant had acknowledged that he was aware of my power to increase the sentence under s.119 of the Magistrates Ordinance. Before proceeding to hear this appeal, I also warned the Appellant of such power and the possibility of his sentence being increased. Nevertheless he chose to proceed. In the circumstances, I substitute the sentence of 15 months of imprisonment and one month of imprisonment for respectively the second and the first charges, and I order them to run consecutively. The total term of imprisonment to be served by the Appellant is therefore 16 months.

6. As a postscript I would say that the Appellant knew that his wife was pregnant when his sneaked into Hong Kong. There is no humanitarian ground for reduction of sentence. He put himself into the predicament by sneaking into Hong Kong despite his knowledge that his wife was expecting. As he only entered Hong Kong recently, his lack of a criminal record in Hong Kong is to be expected. His clear record should therefore not be considered as a mitigating factor.