HKSAR v. VU VAN VIET

DCCC 12/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 12 OF 2015

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REASONS FOR SENTENCE

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1.  The defendant, Vu Van Viet, appeared before me facing three charges:-

(1) Charge 1, theft;

(2) Charge 2, remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong; and

(3) Charge 3, breach of deportation order.

2.  The defendant pleaded guilty to all three charges and admitted the facts pertaining to those charges.

3.  The facts as admitted by the defendant reveal that on 22 October 2014 inside H & M at Plaza Hollywood, a security guard in plainclothes found the defendant acting furtively inside the shop.  The defendant took a few items of clothing from the shelf and put them into his large brown plastic bag.  The defendant left the shop without making any payment.  The defendant was caught by the security guard outside the shop.  A police officer later arrived at the scene and arrested the defendant.

4.  Inside the brown plastic bag, another plastic bag was found.  Inside that other plastic bag, a black bag with tin-foiled lining was found to contain eight shirts and seven pairs of trousers.  They were all property of H & M.  The value of the stolen property was $3,335 in total.

5.  Upon enquiry, the defendant told the police officer that he sneaked into Hong Kong illegally on 20 October 2014, two days before his arrest.

6.  Under caution, the defendant admitted he had stolen a bag of clothes and trousers for his own use.

7.  In a subsequent interview under caution, the defendant told the police he had picked up the plastic bags and the bag with tin-foiled lining at Tung Chau Street Park, Sham Shui Po.  He had acted on your own.

8.  At the material time, the defendant had been subject to a deportation order dated 10 December 2010.  The deportation order was served on the defendant on 28 December 2010 by an Immigration officer.

9.  The defendant had three previous convictions for unlawful remaining and two previous convictions for breach of deportation order. 

10.  The antecedent statement of the defendant shows that he is now 40 years old.  He worked as a farmer in Vietnam.  A married man, he has a son now 23 years old.

11.  Mr Wong, in mitigation, told me the defendant had received education up to Form 1 level in Vietnam.  A married man, the defendant’s son is now 23 years old.  The defendant was born to a farmer’s family.  The defendant’s father is now 76 years old and the defendant’s mother is 74.  The farming business of the family is now being taken care of by the defendant’s wife and his son. 

12.  The defendant was born in the northern part of Vietnam.  He had been living a life of relative poverty.  The defendant’s son had, in fact, finished secondary education.  He was unable to find a decent job. 

13.  Mr Wong told me in mitigation, because of the corrupt practice prevailing in Vietnam, payment of money was required for securing a good job in Vietnam.  The defendant kept coming to Hong Kong because he wanted to earn money in Hong Kong in order to give his son a better future.  Mr Wong told me the defendant is now determined that he will not come to Hong Kong again.  He wants to take care of his aging parents.

14.  In sentencing the defendant, I have borne in mind the facts of this case, the information about the defendant and all the matters urged on the defendant’s behalf by Mr Wong. 

15.  In sentencing the defendant for Charge 1, I have borne in mind the value of the stolen property and the way the defendant committed the offence.  The use of a tinfoil-lined bag displayed some degree of professionalism. 

16.  In my judgment, a starting point of 18 months’ imprisonment is called for.

17.  The defendant is entitled to one-third reduction for his guilty plea.

18.  For the reasons given, on Charge 1, I sentence the defendant to 12 months’ imprisonment.

19.  On Charge 2, the defendant has three previous similar for unlawful remaining in Hong Kong.  A higher starting point is called for.  Obviously, the previous punishments have failed to deter the defendant from coming to Hong Kong illegally.

20.  On Charge 2, I adopt a starting point of 27 months’ imprisonment.

21.  The defendant is entitled to one-third reduction for his guilty plea. That would bring his sentence down to 18 months’ imprisonment.

22.  For these reasons, I sentence the defendant on Charge 2 to 18 months’ imprisonment.

23.  For Charge 3, I have borne in mind that the defendant had been in the past convicted twice for breach of deportation order.

24.  For Charge 3, which is effectively the defendant’s third breach of deportation order, a starting point of 3 years’ imprisonment is appropriate.

25.  The defendant is entitled to one-third reduction for his guilty plea.

26.  For the reasons given, on Charge 3, I sentence the defendant to 2 years’ imprisonment.

27.  The question whether the sentences imposed for unlawful remaining and breach of deportation order should run concurrently or consecutively had been discussed in a number of cases. 

28.  HKSAR v Bui Van Khai, CACC 175/2012 is the recent authority.  The Court of Appeal indicated in Bui’s case that the underlying criminality of these two offences was the same and the sentences should run concurrently.

29.  The sentences for Charge 2 and Charge 3 should run concurrently, but the act of stealing did add to the overall criminality of Charge 2 and 3.  A total sentence of 32 months’ imprisonment should adequately reflect the overall criminality of all three offences.

30.  To achieve that end, I order that whilst the sentences for Charge 2 and Charge 3 should run concurrently with each other, 8 months of the sentence of Charge 1 should run consecutively to the sentences for Charge 2 and Charge 3. 

31.  Hence, a total sentence of 32 months.