HKSAR v. PHAM VAN-TUAN

 DCCC608/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 608 OF 2010

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Reasons for Sentence

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1.  The defendant pleaded guilty to 3 offences, namely "Possession of a dangerous drug" (Charge 1), "Unlawful remaining in Hong Kong" (Charge 2) and "Breach of deportation order" (Charge 3).

Summary of Facts

2.  At about 6:00 pm on 25 March 2010, police officers stopped the defendant for enquiry outside No.80 Pei Ho Street, Sham Shui Po, Kowloon. PC 11054 (PW1) asked him to show proof of his identity, he informed PW1 in Cantonese that he sneaked into Hong Kong from Vietnam and that he did not have any identity card. PW1 searched the defendant and found inside the left front pocket of his jeans a piece of tinfoil which contained a plastic packet containing suspected dangerous drugs. PW1 arrested the defendant.

3.  The defendant is the subject of a Deportation Order issued by the Permanent Secretary for Security on 9 March 2006 under the Immigration Ordinance (Cap.115). He was first deported on 7 April 2006. Thereafter, the defendant was deported from Hong Kong 2 more times under the same order respectively on 29 October 2007 and 8 May 2009.

4.  In his cautioned interviews, the defendant admitted, through Vietnamese interpreters, that he entered Hong Kong illegally on 24 March 2010 from Shenzhen by hiding under a truck. By doing so, he knew that he was in breach of the deportation order made against him. At about 2:00 pm on 25 March 2010, he bought some "white powder" at $50 from an unknown male at an unknown park for his own consumption.

5.  The Government Chemist examined the drug seized from the defendant and confirmed that it is 0.14 gramme of a mixture containing heroin hydrochloride.

Mitigation & Sentence

6.  The defendant is now 26 years old. He has numerous criminal records including 3 convictions of "Unlawful remaining in Hong Kong" and 1 conviction of "Breach of deportation order". He also has convictions related to "Theft" and "Dutiable Goods".

7.  Mr. Pickavant informed me that the defendant is a farmer from Northern Vietnam. He is divorced and has a 6-year-old daughter. He became addicted to drugs in the past 12 months. The defendant came to Hong Kong to earn some money for his daughter.

8.  To assist the court with sentencing, Mr. Pickavant submitted 3 cases, namely HKSAR v Mohammad Shehzad HCMA 793/2007, HKSAR v Muhammad Kakeer HCMA 843/2006 and HKSAR v Nguyen Van Hien HCMA 947/1998. I have read them all.

9.  I will deal with Charges 2 and 3 first. Charge 2 is the defendant's 4^th conviction of "Unlawful remaining in Hong Kong". For the same offence, he was previously sentenced to 10 months, 15 months and 16 months imprisonment. Clearly, a sentence which carries a substantial and meaningful deterrent effect is required this time. I will adopt a starting point of 30 months. One-third discount is given for the guilty plea, reducing to the sentence to 20 months. Apart from this, I see no other mitigating factors which warrant any further discount. The sentence I pass for Charge 2 is 20 months.

10.  Charge 3 is the defendant's 2^nd conviction of "Breach of deportation order". He was sentenced to 18 months imprisonment before. Similarly, a deterrent sentence is required this time. Beeson J in Mohammad Shehzad recognized that a sentence of 21 months imprisonment [after plea] is justified for a 2^nd breach of deportation order[1]. Hence, I will adopt a starting point of 31.5 months. One-third discount is given for the guilty plea, reducing to the sentence to 21 months. Apart from this, I see no other mitigating factors which warrant any further discount. The sentence I pass for Charge 3 is 21 months.

11.  For Charge 1, I note that this is the defendant's 1^st drug-related offence. The quantity of heroin involved is small. I will adopt a starting point of 9 months imprisonment. One-third discount is given for the guilty plea, reducing to the sentence to 6 months. Apart from this, I see no other mitigating factors which warrant any further discount. The sentence I pass for Charge 1 is 6 months.

12.  Regarding the totality of Charges 2 and 3, I have borne in mind the authorities submitted by Mr. Pickavant. I order 10 months of Charge 3 to be served consecutive to Charge 2.

13.  In relation to Charge 1, the Court of Appeal in HKSAR v LEE Kwai Wing CACC 56/2008 held "If a defendant, having entered and remained in Hong Kong illegally, commits another offence, the sentence for the 'unlawful remaining' charge should run consecutively to the sentence for the other offence. The offences are separate and distinct." On this basis, I order the sentence of Charge 1 to be served consecutive to Charges 2 and 3. In other words, the total prison term the defendant will serve for all 3 charges is 36 months.