HKSAR v. TRAN VAN DAO

DCCC215/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 215 OF 2012

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to the two offences on the indictment, the first being an offence of remaining in Hong Kong without the authority of the Director of Immigration after having landed here unlawfully, contrary to section 38(1)(b) of the Immigration Ordinance, Cap.115, Laws of Hong Kong, and the second, an offence of breach of a deportation order contrary to section 43(1)(a) of the Immigration Ordinance, Cap.115.

2.  The summary of facts which you have agreed establish that you were intercepted by a police officer in the vicinity of Yen Chow Street, Sham Shui Po, on 5 February of this year, who, upon conducting a search of you, found a Vietnamese identity card.  You told the officer that you were an illegal entrant.

3.  Further enquiries revealed that you had, in fact, been made the subject of a deportation order in September 2008.

4.  In a further interview with you, under caution, you told the police that you had come to Hong Kong to seek medical treatment and you were well aware that you were the subject of a deportation order and were prohibited from entering Hong Kong.

5.  You are 28 years of age, a Vietnamese national and have six previous convictions in Hong Kong.

6.  Indeed, this is the fourth time you have been convicted of illegally remaining in Hong Kong and the third time you have been convicted of breach of a deportation order.  Your last such convictions for offences of this nature was in 2010, when you received a total sentence of 21 months’ imprisonment.

7.  You are a person who clearly pays no heed to court orders that are passed on you.  You are a repeat offender and can expect little mercy.

8.  In the case of HKSAR v Phan Van Tuan [2009] HKCU 776, HCMA 282/2009, it was stated that a starting point of 3 years’ imprisonment for an offence of breach of a deportation order was in line with authorities.

9.  On the 1st charge of unlawfully remaining in Hong Kong, you will be sentenced to 18 months’ imprisonment and this already takes into account your plea of guilty.

10.  On Charge 2, I adopt a starting point of 3 years’ imprisonment, but will discount this by one-third to take account of your plea of guilty, coming to 2 years’ imprisonment on Charge 2.

11.  Whilst this should properly be ordered to run consecutively to the sentence on Charge 1, due to the question of totality of sentence, I will order 18 months to run consecutively and the balance concurrently, arriving at a total sentence of 3 years’ imprisonment.