R. v. TRAN VAN TUAN

IN THE COURT OF APPEAL

1996, No 255
(Criminal)

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J U D G M E N T

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Bokhary, J.A.:

1. This applicant, a man in his mid 20's, appears before us seeking leave to appeal against a sentence of 15 months' imprisonment passed on him by HH Judge Muttrie in the District Court on April 26 this year, following his plea of guilty to a charge of remaining without authority having landed unlawfully.

2. The judge observed that 15 months' imprisonment was the usual sentence for that offence even allowing for a plea of guilty and a clear record here.

3. The facts are these. This man came overland to Hong Kong from Vietnam via China. He was charged with two offences. The first was a robbery to which he pleaded not guilty and was acquitted. The second was the remaining charge to which he pleaded guilty and for which he received 15 months'.

4. Mr Poon for the Crown informs us that had it not been for the robbery charge, the applicant would have been dealt with administratively by the Immigration Department and repatriated rather than prosecuted. The applicant asks that he be released as soon as possible so that he may be repatriated to Vietnam, which is also the course urged by the Crown in light of the acquittal on the robbery charge.

5. There is only one sensible way of doing it. That is to reduce the applicant's sentence to the extent necessary to bring about his release from prison tomorrow.

6. If we were to reduce the sentence to such an extent that the applicant were released today, that would not suit anybody's purpose, not even his. He would only be left wandering around - hopeless and helpless - in Hong Kong until the Immigration Department got hold of him to do with him what it wants and what happens also to be what he wants.

7. Therefore, the application for leave to appeal against sentence is treated as the appeal and the sentence itself is reduced to the extent necessary to result in the applicant's release tomorrow.

8. We thank Mr Poon for his assistance in this matter.