HKSAR v. VU DINH PHONG

DCCC 1188/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1188 OF 2010

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of remaining in Hong Kong without authority having landed unlawfully and one charge of breach of deportation order, contrary to sections 38(1)(b) and 43(1)(a) of the Immigration Ordinance, Chapter 115.

2.  In summary on the 26th September this year the defendant surrendered to the police saying he had entered Hong Kong unlawfully by speedboat the day before.  By entering Hong Kong the defendant was in breach of a deportation order issued on the 6th November 1995 prohibiting him from entering Hong Kong at any time in the future.  This is the sixth time the defendant has been prosecuted for illegally remaining and breach of the same deportation order.

3.  In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Tang, including over five years have elapsed since the defendant was last deported from Hong Kong; he is now the father of a four month old baby in Vietnam and since his detention in custody he has learnt of the death of his father.  The defendant is however unable to give any particulars as to the cause of death. 

Illegally remaining in Hong Kong

4.  In R v. SO Man-king [1989] 1 HKLR 142 the Court of Appeal 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 depart there from.  The Court of Appeal further held that a court should take into account, by upward adjustment, any previous unlawful entry.  

Breach of Deportation Order

5.  There are no guideline sentences for breach of a deportation order.  The courts however view the offence as more serious than that of illegally remaining and have upheld starting points of 27 months imprisonment for a first offence of breach of a 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.  

6.  In the year 2000 the defendant pleaded guilty to illegally remaining and breach of the deportation order for which he was sentenced to 2 years imprisonment on each charge with 12 months consecutive making a total of 3 years imprisonment, the maximum sentence a magistrate could impose. 

7.  The defendant appealed the sentence which appeal was dismissed.  Lugar-Mawson J dismissing the appeal, which is HKSAR v VU Dinh Phong HCMA 1091/2000, had this to say:

“To put it bluntly, ……., this appellant is a persistent and contumacious offender against our immigration laws. He has come here illegally six times and he has been deported from Hong Kong once every year since November 1995. This time not only did he arrive here, but he was able to remain here for one month and he attempted to evade arrest. Previous sentences have not deterred him from coming and attempting to remain here. It is only by sentencing him to serve the maximum period of imprisonment permitted for the jurisdiction of the court in which he was tried that there can be any hope that he gets the message that he is not permitted to be here. If he offends again after his release the prosecuting authorities will be well advised to ensure that he is tried in the District Court where he can receive a far more severe sentence.”

8.  Notwithstanding the message given by the judge the defendant returned to Hong Kong in the year 2003. Most surprisingly he was once again tried in the Magistrates Court where he was sentenced to a total of  2 years and 6 months imprisonment.  The lower sentence perhaps due to the magistrate deciding the defendant should be given some credit for his plea of guilty, what is called a meaningful discount, from the maximum sentencing jurisdiction of the court.  This was the approach taken in HKSAR v BUI Van Trung HCMA 596/2004, a deportation case, albeit decided after the defendant was sentenced in 2003.

9.  As noted earlier over five years have elapsed since the defendant was deported after serving his last sentence.  The defendant says he came to Hong Kong this time because he was threatened if he did not go his wife will be in danger.  Mr Tang submits, whilst not amounting to duress as the defendant still had a free choice whether to come to Hong Kong or not, the court can take into account that the defendant did not initiate his coming to Hong Kong.     

10.  When asked at the last hearing for further particulars as to the circumstances leading to his coming to Hong Kong Mr Tang informed the court the defendant had nothing further he wished to tell the court.  At the time I indicated that without further particulars I was not prepared to accept from the bar table the circumstances put forward by the defendant, which if accepted might reduce his culpability.  The hearing was adjourned until today for Mr Tang to take further instructions from the defendant.  Mr Tang informs the court today the position is the same, namely the defendant does not wish to give any further details as to the circumstances of his coming to Hong Kong or give evidence in this regard.

11.  The maximum sentence in the District Court for illegally remaining is the same as in the Magistracy, namely 3 years imprisonment, whereas the maximum sentence for breach of deportation order is 7 years.  I am satisfied the proper starting point after trial for illegally remaining is 3 years imprisonment and for breach of deportation is 3 years and 6 months imprisonment.  Giving the defendant full credit for his plea of guilty the sentences are reduced to 2 years imprisonment for illegally remaining and 2 years and 4 months imprisonment for breach of the deportation order.

Surrender

12.  In SO Man-king the court said that voluntary surrender to the authorities should warrant a substantial discount.  Taking into account the defendant surrendered to the police I reduce the sentences on each charge by 4 months imprisonment to 1 year and 8 months imprisonment and           2 years imprisonment respectively. 

13.  Whilst I sympathise with the defendant as to his family circumstances with a new born baby, he knew of this before leaving Vietnam as he did the poor health of his father but still decided to come to Hong Kong.  I am satisfied there are no strong humanitarian grounds to further reduce the sentence.

14.  The courts have repeatedly upheld partially consecutive sentences for these offences.  For example in HKSAR v Mohammad Shehzad HCMA 793/2007 the court 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.”  Considering totality of sentence I am satisfied that an overall sentence of 3 years imprisonment properly reflects the defendant’s criminal culpability on the two charges.

15.  The defendant is sentenced as follows

Charge 1 – 1 year and 8 months imprisonment.

Charge 2 – 2 years imprisonment.

12 months of the sentence on charge 1 is to run consecutively to charge 2 and 8 months concurrent, making the total sentence to be served by the defendant of 3 years imprisonment.