HKSAR v. VU THI VAN ANH

HCMA289/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.289 OF 2000

(ON APPEAL FROM FLCC 388/2000)

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J U D G M E N T

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1. The appellant was convicted on 23 February 2000 of two charges, one of breach of a deportation order and the other of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. She was sentenced to nine months' imprisonment in respect of each of the charges and the sentences were ordered to run consecutively. She now appeals against those sentences.

2. I have reserved this judgment because Mr Cheung for the respondent has asked me to set a guideline sentence for the offence of breach of a deportation order. Having considered his arguments in respect of this case and his request for such a guideline judgment, I decline to declare this judgment as a guideline or tariff as I do not consider it an appropriate case in which to do so. The appeal will therefore be dealt with on its own facts.

3. The facts agreed by the appellant were that at about 3:35 a.m. on 21 February 2000, she was stopped with five others near Ta Kwu Ling in the New Territories whilst the police unit was conducting anti-illegal immigrant duties. All of them were found to be Vietnamese illegal immigrants who had unlawfully entered Hong Kong. They were taken to the Ta Kwu Ling Police Station and there, as a result of fingerprints and other checks, the appellant was found to be subject to a deportation order issued by the Secretary for Security on 17 August 1999 by which she was required to leave Hong Kong and prohibited from entering Hong Kong thereafter. She was cautioned in respect of the offences and under caution admitted committing both offences.

4. Before me, the appellant argues that the sentences are too long and that further that when she was removed from Hong Kong pursuant to the deportation order of 17 August 1999, she was ignorant of the fact that a term of the deportation was that she be prohibited from returning to Hong Kong. Given her admission in the agreed facts that she was in breach of the deportation order, I find her claim now not to have known the contents of that order to lack any weight.

5. In respect of the charge of breach of deportation order, Mr Cheung argues that firstly, the maximum penalty is seven years' imprisonment on conviction on indictment and three years' imprisonment on summary conviction whereas the maximum penalty for remaining in Hong Kong without the authority of the Director of Immigration having entered unlawfully is a fine of $25,000 and three years' imprisonment and is dealt with as a summary offence, he argues that the offence of breach of deportation order ought to be considered a more serious offence than remaining in Hong Kong without the authority of the Director of Immigration having landed unlawfully.

6. He is correct inasmuch as the maximum penalty for the former is greater than that of the latter, however, should the prosecuting authorities elect to deal with an offence of breach of a deportation order in the magistrates court, the limitation of the sentencing imposed on the magistrate are the same in respect of each offence and it is hard to see how that argument can hold good in those circumstances.

7. Mr Cheung refers me to R. v. Talaw MA 910/1996 where it was held that the appropriate sentence for a plea of guilty in respect of a breach of a deportation order was a period of 15 months' imprisonment. A sentence of 15 months' imprisonment was also imposed in R. v. Hoang Dinh Huy MA 1530/1996, that sentence to be served concurrently with other sentences. In HKSAR v. Luu Dinh Huy MA 690/1997, a sentence of 16 months' imprisonment concurrent with another offence was substituted for a sentence of 18 months' imprisonment on the basis that the magistrate, in arriving at 18 months, had miscalculated the deduction he made from his starting point by virtue of the plea of guilty. In HKSAR v. Pham Van Sien MA 1127/1999, it was held that the appropriate sentence for a breach of deportation order was 15 months and in HKSAR v. Cheema Asghar Sajjad MA 85/2000, a sentence of 12 months' imprisonment was upheld. It would seem, therefore, that the range of imprisonment imposed at this time for this offence ranged between 16 months and 12 months on those authorities. I accept that they are authorities which are persuasive in respect of the decision that I must make.

8. R. v. So Man King & Others [1989] 1 HKLR 142 holds that the appropriate penalty for a person who remains in Hong Kong without the authority of the Director of Immigration having entered unlawfully is a term of imprisonment of 15 months and that any previous unlawful entry, whether resulting in a prosecution or not, can be taken into account on a plea of guilty resulting in an upward adjustment of that sentence of 15 months' imprisonment. Mr Cheung argues that where a breach of deportation order involves a previous unlawful entry, the penalty should be higher than for a first entrant. Therefore, the sentence for this offence should be greater than the 15 months set out in R. v. So Man King & Others in respect of a first time offender who remains in Hong Kong without the authority of the Director of Immigration having entered unlawfully.

9. I accept the force of that argument. Where there is sufficient similarity between offences for a comparison to be made of their respective gravity and one clearly is of greater gravity than the other, that difference ought to be reflected in the sentence, particularly when an accused is charged with both of the offences. By saying that, I do not in any way suggest that magistrates should be fettered in the sentences which they imposed and that they ought, in all cases, to take into consideration the peculiar facts of the case before them.

10. In this case, having rejected the claim by the appellant that she did not know the nature of the deportation order served upon her and the basis upon which she was removed from Hong Kong and prohibited from returning, I am left with a situation where clearly she has deliberately breached that order and has not only returned to Hong Kong in defiance of it, but has remained here without the authority of the Director of Immigration having landed unlawfully. It is clear from the authority of R. v. So Man King & Others that the appropriate sentence to be passed upon this appellant in respect of the second charge on the summons is one of 15 months' imprisonment.

11. Given the authorities which show a range of between 12 months and 16 months as an appropriate sentence for breach of a deportation order, I am of the view that the appropriate sentence in respect of the appellant should have been one of 16 months' imprisonment in respect of the breach of deportation order offence. The magistrate made the two sentences that he imposed consecutive to reflect the appropriate totality of sentence.

12. Any combination of the two sentences I find appropriate by way of consecutive or partly consecutive sentences would make the totality of sentence too high.

13. This appeal is allowed and the sentences are set aside. In respect of the first charge, a sentence of 16 months' imprisonment is imposed in lieu of the sentence of nine months' imprisonment and in respect of the second charge, a sentence of 15 months' imprisonment is imposed in lieu of the sentence of nine months' imprisonment, the sentences are to run concurrently.