HKSAR v. NGUYEN THI THUOC

DCCC 143/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 143 OF 2014

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Reasons for Sentence

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Charges and facts

1.  The defendant pleads guilty to unlawful remaining in Hong Kong (1^st Charge) and breach of deportation order (2^nd Charge). 

2.  In the morning on 23 December 2013, the defendant’s conduct aroused the suspicion of SPC 53251.  He stopped and questioned the defendant, who disclosed her illegal immigrant status.  Subsequent investigation revealed that she was the subject of a deportation order dated 6 May 2008 served on her on 2 June 2008, under which she was deported to Hanoi on 8 April 2011; she was prohibited from entering Hong Kong in future.  After arrest and caution, she admitted that 2 days ago she had sneaked into Hong Kong with a view to getting a job. 

Personal background and mitigation

3.  The defendant was born in Vietnam.  She is now aged 48 years.  She sneaked into Hong Kong to look for a job after losing her job as a domestic helper in Shenzhen.  She remained the major breadwinner of her family.  She has 2 records for unlawful remaining (in 2007 and 2010 respectively) and 1 record for breach of deportation order (in 2010). 

Sentencing considerations

4.  It is well-settled that an illegal immigrant shall receive 15 months’ imprisonment on a guilty plea and a repeat offender shall receive a higher sentence (The Queen v. So Man-king and Others [1989] 1 HKLR 144). 

5.  In HKSAR v Gabriel, Malou Lantin HCMA 716/2004, the Court of First Instance identifies 27 months as the starting point for a first breach of deportation order.  In HKSAR v Pham Van Tuan CACC 272/2010, the Court of Appeal has affirmed an overall sentence of 23 months on a guilty plea to unlawful remaining and breach of deportation order for an appellant having 3 records for unlawful remaining and 1 record for breach of deportation order.     

6.  In HKSAR v Bui Van Kai CACC 175/2012, the Court of Appeal has reviewed the authorities (HKSAR v Nguyen Cong Su CACC 286/2012, HKSAR v Pham Van Hung CACC 14/2011) and regarded as apposite concurrent sentences in sentencing the dual offences of unlawful remaining and breach of deportation order. 

Sentencing this defendant

7.  Aggravated by the recurrence of each offence, the 1^st Charge shall have a starting point of 18 months upon her guilty plea whilst the starting point, ie, before plea, shall be 33 months for the 2^nd Charge.  One-third off for the plea of guilty, the 2^nd Charge shall warrant a sentence of 22 months.  There are no other mitigating factors.  The sentences shall be concurrent.  The overall sentence shall be 22 months.