HKSAR v. PHAM VAN HUNG

DCCC 1286/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1286 OF 2010

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REASONS FOR SENTENCE

1.  The Defendant has been convicted on his own plea on 2 counts on the amended indictment, namely count 1 of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to Section 38(1)(b) of the Immigration Ordinance, Cap. 115 and count 2 of breach of deportation order, contrary to Section 43(1)(a) of the Immigration Ordinance, Cap. 115.

2.  Facts admitted by the Defendant disclose that he is Vietnamese and he has no right of abode in Hong Kong. On 16 December, 2003, a deportation order was made against the Defendant requiring him to leave Hong Kong and prohibiting him from being in Hong Kong at any time thereafter. He was deported to Vietnam on 15 January, 2004.  At 5.05 p.m. on 26 October, 2010, he was intercepted in the Sham Shui Po area by a plainclothes police officer on anti-crime patrol duty for an identity card check and inquiry. The Defendant failed to produce any proof of identity and disclosed that he was an illegal immigrant who had sneaked into Hong Kong that same day.  He was arrested. When interviewed under caution subsequently in the presence of a Vietnamese interpreter,  he said he had sneaked into Hong Kong at 8 a.m. that day by hiding beneath a truck. At  another interview under caution on 27 October, 2010,  he admitted the offences and stated he knew that he was restricted by the Court of Hong Kong  from entering Hong Kong again.

3.  In passing sentence, I have considered all that has been urged upon me in mitigation by Counsel on behalf of the Defendant.  He has 6 previous court appearances in Hong Kong. His record dates back to 2003.  He has 11 previous convictions, including  5 for illegal remaining  and 4 for breach of deportation order.  His last convictions were on 25 March, 2009, when he was sentenced to 21 months’ imprisonment for illegal remaining and 12 months’ imprisonment for breach of deportation order, to be served concurrently. He was released from prison on 26 May, 2010, according to his antecedent statement. He has returned to Hong Kong very shortly after being sent back to Vietnam after serving that prison term.   He is now aged 32 years and recently divorced, with a son aged 11 years and a daughter aged 8 years. He has received secondary education, and is a farmer in Vietnam.  He contracted AIDS in 1999.  I am told that in 1998, he was a prosecution witness and gave evidence against a fellow Vietnamese who was charged with trafficking in a dangerous drug here in Hong Kong.  That Vietnamese was convicted and sentenced to 10 years’ imprisonment.  That Vietnamese was recently released from prison, and threatened the Defendant’s life unless the Defendant paid him money. The Defendant was unable to pay, and therefore chose to leave Vietnam and come back to Hong Kong.

4.  I have also considered the 2 authorities handed to me by the Prosecution and the Defence, namely HKSAR v. Pham Van Tuan, HCMA 221/2004 by the Prosecution and HKSAR v. Muhammad Kakeer, HCMA 843/2006 by the Defence.

5.  In determining the sentence for these offences I have to bear in mind that the Defendant is a repeated offender in respect of illegal entries and the breach of his Deportation Order.

6.  For offences of illegally remaining in Hong Kong, the Court of Appeal in R. v. So Man-king [1989] 1 HKLR 142 held that allowing for a plea of guilty, a sentence of 15 months’ imprisonment should be used as the basic guideline unless there are strong humanitarian considerations to warrant a departure from that guideline.  The Court of Appeal further held that a court should take into account, by upward adjustment, any previous unlawful entry.

7.  There are no guideline sentences for offences of breach of deportation orders.  In HKSAR v. Muhammad Kakeer, supra,  Deputy High Court Judge M. Poon, as she then was, said:-

“10. In HKSAR v. Nguyen Chi Trung, HCMA1095/2001, Beeson J reviewed the earlier authorities saying that the customary sentence for offence of breach of deportation order was 12 to 16 months’ imprisonment (HKSAR v. Do Thi Hue, HCMA873/2001 and HKSAR v. Vu Thi Wan Anh [2002] 2 HKLRD 284). Declining to set down guidelines, Beeson J said :

“29. 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 unlawfully 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.

30. A breach of a Deportation Order is a more serious offence than those under s.38(1)(b) of the Immigration Ordinance. That is indicated by the legislative provision that enables such a breach to be dealt with on indictment, with a maximum sentence of 7 years. The sentencing range of 12 – 16 months that prevails at present seems to have been reached incidentally by reference to, and association with, other offences under the Immigration Ordinance. No Court of Appeal guidelines or tariffs exist and cases on sentence are persuasive rather than binding on this court.

31. Some principles do emerge. A sentence for such breach should be deterrent as the offence is serious. The charge should be recognised 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 individualised prohibition.”

11. In that case, a sentence of 18 months’ imprisonment on a plea was upheld.”

The courts view such offences as more serious than offences of illegal remaining and have upheld starting points of 27 months’ imprisonment for a first offence of breach of deportation order (see for example HKSAR v. Nguyen Chi-trung, HCMA 1095/2001) as applied in HKSAR v. Cortez Emily Bisoy [2002] 2 HKLRD 762. Again, a court should take into account, by upward adjustment, any previous breach. Deputy Judge McMahon, as he then was, said:-

“3.I will deal firstly with the sentence imposed in respect of the appellant's breach of her deportation order.

4. It may well once have been the case that this court regarded the appropriate sentence after plea for the breaching of a deportation order to be a sentence in the vicinity of 12 months' imprisonment or even less : see HKSAR v. Vu Thi Van Anh, HCMA289/2000; HKSAR v. Nguyen Thi Thoa, HCMA110/1999; R. v. Hoang Dinh Huy, HCMA1530/1996; and HKSAR v. Cheema Asghar Sajjad, HCMA85/2000. But in recent years, those sentences have been substantially increased : see HKSAR v. Luu Dinh Huy, HCMA690/1997; HKSAR v. Do Thi Hue, HCMA873/2001; and HKSAR v. Nguyen Chi Trung @ Dong Van Thanh, HCMA1095/2001.

5. In the last mentioned case, Beeson J said :

"A sentence for breach of a deportation order, comparable to that for a plea to unlawfully entering and remaining, for a first charge, could properly be 18 months' imprisonment. Given the maximum sentence and the serious nature of the offence it would be difficult to fault sentences that were higher than 16 months."

With that I agree. Indeed, that the legislature intended the offence of breach of a deportation order to be a serious offence and further, a more serious offence than unlawfully remaining in Hong Kong is perhaps evident from the maximum penalty being one of seven years' imprisonment as compared to the maximum sentence of three years' imprisonment for unlawfully remaining in Hong Kong.

6. That is sensible when it is remembered that the breach of a deportation order requires a deliberate circumvention of an order directed at the offender personally. In my view, a sentence of 18 months' imprisonment after plea for such an offence cannot be criticised.”

8.  The  Defendant here says he has come back to Hong Kong so soon after his last release from prison, about 5 months after his discharge, because his life was threatened as he was unable to pay money to another Vietnamese who was imprisoned in Hong Kong for 10 years for drug trafficking offences as a result of his testifying against him and who had recently returned to Vietnam after being released from prison. I do not accept that this justifies the breach of a deportation order – the Defendant knew that there was in force against him a deportation order prohibiting his return to Hong Kong – he had a free choice as to where he went.

9.  The maximum sentence in the District Court for illegal remaining is the same as in the Magistracy, namely 3 years’ imprisonment, whereas the sentence for breach of deportation order is 7 years’ imprisonment.  I am satisfied that the appropriate starting point in respect of the Defendant herein for the offence of illegal remaining is one of 3 years’ imprisonment, and that for breach of the deportation order is 3 years and 6 months’ imprisonment.  Save for his pleas of guilty, there is little else of weight in mitigation before me.  I am satisfied that there are no strong humanitarian considerations to further reduce the sentence. Giving the Defendant full credit for his pleas of guilty, the sentences are reduced to 2 years’ imprisonment for the offence of illegal remaining and 2 years and 4 months’ imprisonment for the offence of breach of deportation order.

10.  The courts have repeatedly upheld partially consecutive sentences for these offences. Deputy High Court Judge M. Poon, as she then was, in HKSAR v. Muhammad Kakeer, supra, said:

“14. Gill DJ, in HKSAR v. Pham Ngoc Hue, HCMA874/2001 recognized that there had been inconsistent approaches by courts as to whether the sentences in respect of unlawful remaining charge should run concurrently to, or consecutively, or partially consecutively to the breach of deportation order charge. He preferred the view taken by Jackson J in HKSAR v. Nguyen Van Hien, HCMA947/1998 that :

“….the offence of remaining in Hong Kong without authority is quite plainly a single offence but if the offender has come here in direct contravention of a deportation order then that is another offence and it is quite separate and distinct, and the learned Magistrate was perfectly entitled to view it as such and impose consecutive terms of imprisonment.”

15. I agree that partially consecutive sentences should be imposed.”

11.  The Court, in HKSAR v. Mohammad Shehzad, HCMA 793/2007, said, at paragraph 16:

“To enter Hong Kong in defiance of such an order is a separate and distinct offence from illegal entry and the criminality is greater. Deterrent sentences should be imposed in each case.”

12.  Considering totality of sentence, I am satisfied that an overall sentence of 3 ½ years’ imprisonment properly reflects the Defendant’s criminal culpability on the two charges. 

13.  The Defendant is sentenced as follows:

Charge 1 – 2 years' imprisonment

Charge 2 – 2 years' and 4 months' imprisonment

10 months of the sentence on charge 2 is to run concurrently with that on charge 1, and 1 ½ years is to run consecutively, making the total sentence to be served by the Defendant to be 3 ½ years’ imprisonment.