HKSAR v. NGUYEN VAN TRUC (also known as NGUYEN VAN TRUE and NGUYEN VAN MANH)

DCCC 758/2019

[2020] HKDC 481

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 758 OF 2019

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

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

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

REASONS FOR SENTENCE

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

1.  The defendant has pleaded guilty to 5 charges of Breach of deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap 115. These charges are identical, saved that they took place on different dates i.e. 26 September 2009, 13 October 2010, 3 April 2011, 6 August 2011 and 10 October 2011.

The Summary of Facts

2.  On the 16 June 2006 a Deportation Order was issued against a male using the name NGUYEN Van-manh, a name that the defendant used at that time.  This was served and executed on the 12 July 2006 with the defendant being escorted by Immigration officers to board a flight out of Hong Kong.

3.  According to government records a male using the name NGUYEN Van-truc registered a marriage in Hong Kong to a Hong Kong Resident in June 2008.  This man was the defendant.

4.  Later the defendant applied for, and was issued with a Hong Kong Permanent Identity Card (HKPIC) on 19 March 2019.

5.  Immigration Movement Records show the defendant to have travelled in and out of Hong Kong on numerous occasions including the dates specified in the charges.

6.  A fingerprint check has shown that the male NGUYEN Van-manh mentioned above and NGUYEN Van-truc are the same person.

7.  On the 2 July 2019 at 1815 hours the defendant after arrest, was interviewed under caution.  In the course of the said Record of Interview the defendant stated, inter alia, that:-

(a) His true identity is NGUYEN Van-truc (ID1);

(b) He had been to Hong Kong twice. In 2005, he sneaked into Hong Kong and he was deported by the Immigration Department in 2006;

(c) He recognized copies of his Vietnamese passports and his applications for HKPIC. He confirmed that all the information stated therein belonged to him;

(d) He used his Vietnamese passport under ID1 to enter Hong Kong in 2008 and he used his HKPIC to enter Hong Kong in early 2019;

(e) He recognized the Vietnamese passport under the name of NGUYEN Van-manh (ID2) and the defendant claimed that although the passport bore his image, the personal particulars belonged to his younger brother;

(f) As the passport bore his image, he used such passport to enter Hong Kong. He only discovered that such passport bore the personal particulars of his younger brother after presenting the same for arrival clearance in Hong Kong. As such, he continued to use it;

(g) He recognized the Deportation Order and admitted to have signed on it. He understood the content of the Deportation Order;

(h) When he was being served the Deportation Order, an interpreter had explained the content to him i.e. he could not enter Hong Kong again;

(i) He signed “MANH” on the Deportation Order because he used the passport with the personal particulars of his younger brother;

(j) In about 2003, he used the passport with ID2 to enter Hong Kong to seek employment. Yet, he overstayed and was later arrested. He was subsequently removed from Hong Kong. Since then, he had not used that passport again as he knew that it would be hard for him to come to Hong Kong on the strength of such passport;

(k) In 2005, he sneaked into Hong Kong to work. At such time, he used a false working permit. He was later arrested by the police and was sentenced to 10 odd months’ imprisonment. The Immigration Department later served the said Deportation Order upon him and he was deported to Vietnam;

(l) After he returned to Vietnam [in 2006], the Vietnamese government confiscated the passport (under ID2). Although he knew that he was a deportee and could not come to Hong Kong, he used the passport (under ID1) to come to Hong Kong;

(m) He successfully entered Hong Kong using the passport (under ID1);

(n) He worked as a construction worker after obtaining HKID card;

(o) He knew that a deportee could not return to Hong Kong. However, he entered Hong Kong illegally by using his own identity and was a HKID card holder.

8.  It is admitted by the defendant that at all material times as specified in the relevant charges, he knowingly was in Hong Kong in breach of the said Deportation Order dated 16 June 2006.

Mitigations

9.  Mr. Fong, Counsel for the defendant, has prepared a set of helpful written mitigation submissions.

10.  The defendant is a father of two children who are 7 and 6 years old now.  His wife is a Hong Kong citizen.  The defendant was 24 years old when he breached the Deportation Order for the first time in 2009.

11.  I am told that the defendant is a loving father, a responsible husband and is also the sole-breadwinner of the family.  The defendant worked hard as a construction worker and all along supported the family.  The commission of the offences were out of love and affection towards his family.  There are mitigation letter and material.  I am prepared to accept that the defendant is remorseful.

12.  The defendant did not indicate his guilty plea timely.  His trial was fixed in December 2019 and the court was only informed of his intention to plead guilty in May 2020.  Mr Fong submits that legal representation was made to the Department of Justice and as a result, the 6^th to 10^th Charges in the present case are now left on court’s file not to be proceeded with without the leave of the court.  In my judgment, however, the nature of all the 10 Charges remain the same.  The development does not warrant any departure from the principles laid down in the case of HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, therefore I do not accept that the defendant is entitled to a full 1/3 discount.  Having considered all the circumstances in the present case, I am prepared to give the defendant a 30% discount on sentence.

13.  Mr Fong refers to a number of authorities and submits that a total term of 28 months’ imprisonment is appropriate in the present case.  It arises from a starting point of 42-month with a full 1/3 discount. 

14.  Mr Fong also emphases that the case of HKSAR v Tommy Winata CACC357/2018 is more serious than the present case as there were two theft charges (pickpocketing) involved in that case whereas the commission of the offences by the defendant was due to his wish and desire to stay in Hong Kong with his family and other than that he had committed no other offences. 

15.  There were 6 breaches in Tommy Winata and the appropriate starting points were 27, 30, 30 36, 42 and 42 months for the relevant charges respectively.  These charges were to be served concurrently and therefore the appellant was imposed of a 28 months’ imprisonment. 

16.  Having considered carefully, I shall adopt the starting points of 27, 30, 30, 36 and 42 for Charge 1 to 5 respectively.  Giving a 30% discount, the sentences become 18.9, 21, 21, 25.2 and 29.4 months.  Bearing in mind the totality principle, I agree that a concurrent sentence is appropriate and taking into account all the mitigations, a rounded down figure will be adopted.  The overall sentence becomes 29 months’ imprisonment.  Charges 1 to 4 to be served concurrently to that of Charge 5.