DCCC1031/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1031 OF 2010

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Reasons for Sentence

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1.  The defendant pleaded guilty to the following three charges: 1st charge, burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap. 210; 2nd charge, unlawful remaining, contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115; 3rd charge, breach of deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap. 115.

2.  The facts admitted by the defendant and which gave rise to the charges were relatively simple.  In the small hours of 26 July 2010, the defendant damaged the ventilation fan of a warehouse and climbed inside the premises through it.  A short while later, the defendant climbed out from the premises and tried to flee.  He did not succeed in taking away any properties as the owner of the premises later confirmed that he had suffered no loss other than the damage done to the ventilation fan.  Since the defendant’s actions had been noticed by the police, the police intercepted and arrested him when he climbed out from the premises. 

3.  Under caution, the defendant said he was a Vietnamese and that he entered Hong Kong unlawfully from Shenzhen.  At the time, a deportation order which was issued in the year 2000 was in force against the defendant and he was prohibited from being in Hong Kong.

4.  The defendant is now aged 42.  Since 1991, he has been before the court on seven occasions.  He has one burglary conviction in 1998 and, to date, he has six unlawful remaining convictions and five breach of deportation order convictions.  He was first deported to Vietnam in year 2000 and was repeatedly re-deported in 2002, 2005, 2006, 2008 and 2010.   The last deportation was effected on 15 March 2010, yet, just a few months later, he was back in Hong Kong again in July and committed these offences.

5.  Ms Cheng told the court that the defendant is married and has a child of four years old.  His wife and child live in North Vietnam.  He himself is chronically ill because he contracted AIDS in 2003.  Ms Cheng also said that the defendant has received no education and he was unemployed at the time of his arrest. 

6.  What is clear in this case is that the defendant is a persistent offender.  The previous sentences imposed on him did not have sufficient deterrent effect and he repeatedly offended and re-entered Hong Kong.  He pays no attention to the deportation order and this time, he found his way to Hong Kong by entering from Shenzhen.  As the defendant was unemployed and his immediate family members were in Vietnam, it would appear that he came to Hong Kong for no particular purpose other than to commit these offences.  This is an aggravating factor.  The fact that he is suffering from a chronic illness is no excuse.

7.  For burglary of non-domestic premises, it is well settled that a term of 30 months is appropriate. This is what I am going to adopt as the starting point for charge 1.  The defendant pleaded guilty and he will be given one-third reduction for his plea. Therefore, he is to serve a term of 20 months for charge 1.

8.  For charge 2, as the defendant is a repeated offender with an appalling record, I consider a more severe sentence is required in order to deter him.  By this, I am of course not saying that he should be sentenced for his previous offences but that in view of his record, I take the view that a more severe sentence is necessary in order to achieve the deterrent effect.  Therefore, I am going to impose a term of 22 months instead of the usual term of 15 months after a guilty plea as laid down in R v So Man King & Ors [1989] 1 HKLR 142.  This term of 22 months is imposed after taking into account his guilty plea for this charge. 

9.  For charge 3, again, given the defendant’s previous breaches of the deportation order, it is clear that he pays no heed to the order and a deterrent sentence is called for.  I share the sentiment expressed by the Hon Lugar-Mawson J in HKSAR v Vu Dinh Phong HCMA 1091/2000 (unreported).  In this case, it is only by sentencing the defendant more severely that there can be any hope of this defendant getting the message that he is not permitted to be in Hong Kong. Therefore, the starting point which I am going to adopt is one of 3 years.  He pleaded guilty and will be given one-third reduction for his plea.  Therefore, he is going to serve 2 years’ imprisonment for this charge.

10.  The immigration offences are separate and distinct from his burglary offence and the sentences should run consecutively. Having considered the totality principle, I order that the sentence in respect of charge 2 is to run wholly consecutively to that of charge 1 and that 1 year of the term in respect of charge 3 is to run wholly consecutively to those of charges 1 and 2, making a total of 54 months’ imprisonment.  The defendant is therefore to serve a term of 54 months’ imprisonment.