HKSAR v. TRAN VAN TUAN

DCCC1343/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1343 OF 2010

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Reasons for Sentence

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1.  The defendant was convicted upon his guilty pleas of the following charges: Charge 1, possession of dutiable goods; Charge 2, remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, and for convenience sake, hereinafter I will call it the offence of unlawful remaining; the 3rd charge, possession of dutiable goods; Charge 4, breach of deportation order.

2.  In sentencing, I have considered the whole circumstances of the case, including its nature and facts, personal background of the defendant and mitigation put forward on his behalf.

3.  Facts of the case may be summarized as follows.

4.  On 5 November 2010, the defendant was stopped when he came out from a flat in a building.  In the two nylon bags he was carrying, 40,000 “duty not paid” cigarettes were found.  With the keys found on the defendant, entry was gained into a room inside the above said flat.  There, 559,200 “duty not paid” cigarettes were found. 

5.  At the material time the defendant was remaining in Hong Kong without the authority of the Director of Immigration.  He came to Hong Kong in breach of a deportation order imposed on him on 26 September 2008.  By the order the defendant was required to leave Hong Kong and was prohibited from being in Hong Kong at any time thereafter.  Since the issue of the deportation order, the defendant had twice been deported to Hanoi, Vietnam, once on 30 October 2008 and the other on 7 May 2010. 

6.  Defendant is 42 years of age.  He was living with his parents and siblings in Vietnam.  He received education up to Form 1 and had engaged in decoration and farming work.  His wife is also a farmer. They had a daughter and a son, both teenagers receiving secondary school education. 

7.  Defendant is not a first-time offender.  In October 2007 he was convicted of a charge of unlawful remaining and a charge of going equipped for stealing, of which he was sentenced to a total of 18 months’ imprisonment.  In March 2009 he was again convicted of the same offences and also a further offence of breach of deportation order.  For these offences he was sentenced to a total of 21 months’ imprisonment. 

8.  In the present case, Charge 1 and Charge 3 concern the possession by the defendant of a large quantity of cigarettes for which duty had not been paid.  The offence is one contrary to section 17(6) of the Dutiable Commodities Ordinance which obviously aims at possession of cigarettes in a trade or business context.  It carries a maximum sentence of a fine of $1 million and 2 years’ imprisonment, the same as other offences created under section 17, including the offence of dealing with dutiable commodities which more offenders are charged with. 

9.  Though most sentencing precedents concern the offence of dealing with dutiable commodities, in my opinion, the sentencing considerations are generally applicable in the present case.  The defendant must be in possession of the dutiable commodities in the course of business or trade.  The quantity of cigarettes, the value, the impact on the legitimate cigarette traders and the duty avoided are all relevant factors. 

10.  Though only the quantity of the cigarettes was expressly mentioned in the facts admitted by the defendant, in view of the large quantity it defies common sense that the impact on the traders and the duty avoided were not substantial. 

11.  Having regard to cases such as HKSAR v Mok Chun Wing, HCMA727/2000, HKSAR v Ma Wai Fui, HCMA1123/2003, and HKSAR v Sze Man Ngai, HCMA821/2004, I am of the view that an immediate imprisonment term is called for in relation to each of these two offences.

12.  In the light of the quantity involved, it must be a wholesale operation.  Defendant must be playing a substantial role in the operation.  In my judgment, the following starting points are appropriate: Charge 1, 9 months; Charge 3, 15 months. 

13.  Charge 4 is the offence of breach of deportation order.  I have had regard to the following sentencing precedents.

14.  In HKSAR v Nguyen Chi Trung @ Dong Van Thanh, HCMA1095/2001, Beeson J said:

“This offence is a more serious offence than that of unlawful remaining. Obviously, the offence of breach of deportation order carries a higher maximum sentence of 7 years.”

15.  Her Ladyship also said:

“The crux of the offence of a breach of deportation order does not lie solely in an offender’s illegal presence in Hong Kong, as is true for unlawful landing or remaining, or using a false identity card. The gravamen of the offence is that a convicted person, who has no right to be in Hong Kong, and who has been prohibited from returning for a specified period, disobeys that prohibition and returns to Hong Kong.”

16.  Her Ladyship further said:

“A sentence for such breach should be deterrent as the offence is serous. The charge should be recognized as aiming to prevent the unlawful return to, and presence in, Hong Kong of someone who has no right to enter, nor any right of abode, and to punish a convicted offender who defies an individualized prohibition. Those aims justify a sentence after plea being higher than the 15 months after plea, decided on in So Man King. A sentence for breach of a deportation order, comparable to that for a plea to unlawful entering and remaining, for a first charge, could properly be 18 months’ imprisonment.”

17.  In HKSAR v Cortez Emily Bisoy, HCMA457/2002, Deputy Judge McMahon, as he then was, expressed his agreement to the view and added that the legislature intended the offence of breach of a deportation order to be a serious offence and, further, a more serious offence than unlawful remaining.  He said that a sentence of 18 months’ imprisonment after plea for such an offence cannot be criticized since it is a deliberate circumvention of an order directed at the offender personally. 

18.  In HKSAR v Gabriel Malou Lantin, HCMA716/2004, Beeson J said that the authorities indicate that for a first offence of breach of a deportation order, a starting point of 27 months would be appropriate.  In this case her Ladyship upheld a starting point of 30 months imposed on the appellant who had one previous similar record. 

19.  Whilst these decisions are not binding on me, I respectfully agree to the reasoning of the learned judges.  I adopt a starting point of 30 months for Charge 4. 

20.  The defendant pleaded guilty, he is entitled to a one-third discount.  Having considered the whole of the relevant circumstances, I am of the view that this is the extent of discount the defendant is entitled to in this case.  Accordingly, I sentence the defendant to the following sentences: Charge 1, 6 months; Charge 3, 10 months; Charge 4, 20 months.

21.  For Charge 2, the offence of unlawful remaining, there is no reason not to follow the tariff.  It was held by the Court of Appeal in R v So Man King [1989] 1 HKLR 142 that a sentence of 15 months’ imprisonment should be imposed after plea.  In that case Mr Justice Cons, Acting Chief Justice, said that the court should take into account by upward adjustment any previous unlawful entry, whether resulting in prosecution or not, and other circumstances which may aggravate the offence. 

22.  In my judgment, a sentence of 18 months’ imprisonment is appropriate for Charge 2, taking into account the guilty plea.

23.  In HKSAR v Nguyen Tuan Anh, HCMA1091/2003, Madam  Beeson J upheld a partly consecutive sentence for the offences of unlawful remaining and breach of deportation order.  It had been said that the sentences imposed should distinguish between those who had merely entered Hong Kong lawfully and those who positively disobeyed an injunction not to return to Hong Kong and that if concurrent sentences are passed, the service of deportation orders is rendered an empty exercise and the intention of legislature and executive rendered nugatory.    

24.  In my judgment, as a matter of principle, the sentences imposed on Charge 2 and Charge 4 should be partly consecutive and an aggregate sentence for these two charges should be 24 months.  To give effect to this, I order 4 months imposed on Charge 2 to run consecutively to those imposed on Charge 4. 

25.  There is also a line of authorities such as HKSAR v Tong Fuk Sing, CACC216/1999, HKSAR v Bagtas Alicia Cawivel, HCMA195/1998 and HKSAR v Gabriel Malou Lantin which endorse the approach that if on top of the immigration offence, the offender committed offence of other nature, a consecutive sentence should be imposed. 

26.  I am also of the view that the aggregate sentence of Charge 2 and Charge 4 should be consecutive to the sentences imposed on the other two charges, subject to totality.

27.  Having considered the whole circumstances, I order the sentences imposed on Charge 1 and Charge 3 to run concurrently, but with 6 months of the aggregate to run consecutively to the aggregate sentence imposed on Charge 2 and Charge 4.  For the four offences, defendant is to serve a total sentence of 30 months’ imprisonment.