HKSAR v. BUI VAN TRUNG

DCCC818/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 818 OF 2010

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Reasons for Sentence

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1.  The defendant, Bui Van Trung, alias Bui Van Chung, pleaded guilty before me to one charge of breach of deportation order, Charge 1, and remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, Charge 2.

2.  At around 9.15 am on 22 June 2010, a team of police officers performed patrol duties in uniform in the Sham Shui Po area. The police officers saw the defendant on his own at Hai Tan Street.  The police officers found the defendant’s conduct suspicious and they intercepted the defendant for inquiries.

3.  When questioned by the police officers, the defendant admitted that he had sneaked into Hong Kong illegally.  Upon search of the defendant, no passport or document of identity could be found.

4.  In a subsequent interview, the defendant said under caution that he had difficulties in making ends meet in Vietnam.  He therefore came to Hong Kong with a view to finding a job.

5.  Subsequent police inquiries revealed that a Deportation Order had been issued against the defendant back in January 2000. Under the said Deportation Order, the defendant was required to leave Hong Kong on 4 January 2000 and was prohibited from being in Hong Kong at any time thereafter.  The defendant, however, returned to Hong Kong on at least five separate occasions in 2000, 2001, 2004, 2006 and 2008.  The defendant was last repatriated to Vietnam on 7 May this year.

6.  At the material time, the defendant was remaining in Hong Kong without the authority of the Director of Immigration, after having landed in Hong Kong unlawfully, and by entering Hong Kong illegally and without the authority of the Director of Immigration, the defendant was also acting in contravention of the Deportation Order issued against him in January 2000, which was still in force on 22 June this year.

7.  The defendant is not a man of clear record.  He has 17 convictions recorded against him on eight separate occasions.  In the past, the defendant had been convicted of offences like escape from detention centre or from legal custody; manslaughter; burglary; possession of a false instrument; possession of DD; theft. 

8.  The defendant has five previous convictions for breach of deportation order and six previous convictions for unlawful remaining. 

9.  In December 2008, the defendant was convicted of breach of deportation order and unlawful remaining and he was sentenced to a total term of 25 months’ imprisonment.

10.  Mr Ng in mitigation submits that the personal background of the defendant has been succinctly set out in the antecedent statement of the defendant.  The defendant was in financial difficulties in Vietnam.  It was extremely difficult for the defendant to find a job in Vietnam and he sneaked into Hong Kong in making his ends meet.

11.  Mr Ng submits there is no sentencing tariff for the offences in question, i.e., breach of deportation order and unlawful remaining.  Mr Ng asked me to bear in mind the totality principle in sentencing the defendant for the two offences in question and order the terms of imprisonment to run partly concurrent with each other.

12.  In the appendix to Sentencing in Hong Kong by Cross & Cheung, the learned authors went through the authorities for the offence of breach of deportation order and observed that sentences for this offence have markedly increased in the past few years. 

13.  In HKSAR v Do Thi Hue, MA873/2001, the court observed that for the offence of breach of deportation order it is an offence more serious than unlawful landing and remaining.

14.  In HKSAR v Nguyen Tuan Anh, MA1091/2003, the court observed that 2 years’ imprisonment is appropriate on a guilty plea.

15.  In the case HKSAR v Gabriel Malou Lantin, MA716/2004, the court observed that the appropriate starting point for a first offender is one of 27 months’ imprisonment and a starting point of 30 months is appropriate for a second offence.

16.  The maximum penalty for the offence of breach of deportation order is 3 years’ imprisonment on indictment.

17.  In the present case, the defendant acted in blatant defiance of a deportation order made against him.  He had on five previous occasions committed the identical offence of breach of deportation order. 

18.  In the present case, a starting point of 3 years’ imprisonment is appropriate.  I will allow the defendant one-third reduction for his guilty plea and reduce the sentence to 2 years’ imprisonment.

19.  For the reasons given, I sentence the defendant to 2 years’ imprisonment for Charge 1.

20.  R v So Man King and Others [1989] 1 HKLR 142 is the leading authority for the offence of unlawful remaining.  It was held in So Man King that 15 months’ imprisonment is the appropriate sentence on a guilty plea.

21.  In R v Nguyen Van Doan and Others [1997] 3 HKC 594, the court held that the sentencing policy for illegal immigrants from Vietnam equates to that for Mainland illegal immigrants.

22.  The maximum penalty for the offence of unlawful remaining is one of imprisonment for 3 years.

23.  The defendant had been convicted on six previous occasions for the offence of unlawful remaining.  In the present case, the defendant was last repatriated to Vietnam on 7 May 2010.  He was found in the Sham Shui Po area about 1½ months’ time after his last repatriation.

24.  In my judgment, the facts in the present case call for the maximum penalty be adopted as the starting point and I take 3 years' imprisonment as the starting point for Charge 2 in the present case.  I will allow the defendant one-third reduction for his guilty plea. 

25.  For the reasons given, I sentence the defendant to 2 years' imprisonment for Charge 2.

26.  I have considered the totality principle.  In my view, a total sentence of 3 years' imprisonment should adequately reflect the overall criminality of the whole matter.

27.  I order that 1 year of the sentence for Charge 1 is to run consecutively to the sentence for Charge 2, hence a total sentence of 3 years' imprisonment.