HKSAR v. VU KHAC SON

DCCC 166/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 166 OF 2013

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Reasons for Sentence

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1.  The defendant has pleaded guilty today to two charges. The first, remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. The second charge is breach of a deportation order dated 14 January 2010.

2.  The facts of the case are that on 18 January this year the defendant was stopped by the police because he looked suspicious. The defendant admitted to the police that he had sneaked into Hong Kong illegally that same day.  The defendant told the police that he had come to Hong Kong to seek treatment for his drug addiction.

3.  The defendant was aware and admitted that he had been deported in 2010 and this was his second breach of that deportation order.

4.  The defendant has previously been sentenced on two occasions for remaining in Hong Kong without the authority of the Director of Immigration.  Those two offences took place in 2009 and 2010, for which he was sentenced to 15 months and 18 months’ imprisonment respectively.  This is his third offence of illegally remaining in Hong Kong.  In July 2010, the defendant was sentenced to 12 months for his first breach of the deportation order dated 14 January 2010.  His previous convictions have been dealt with in the Magistracy.

5.  The defendant’s best mitigation today is his plea of guilty. 

6.  He is 30 years old, recently married and his wife relies on him financially.  Until December last year he did have employment that gave him an income but he lost his job.  According to the antecedent the defendant is also suffering from AIDS but at the moment not receiving treatment in Hong Kong.  It has been reiterated today that he has come for the purpose of trying to kick his drug addiction habit.  Whether true or not, I will sentence according to authorities and sentencing guidelines.

7.  Defence counsel has submitted an authority, HKSAR v Pham Van Tuan, CACC 272/2010.  I will not repeat the facts of the case but the Court of Appeal endorsed a partially concurrent and partially consecutive sentence where these two charges are concerned.  The court made it clear to look at the totality principle and consider what was the overall starting point for both immigration offences.

8.  For Charge 1, the normal sentence would be for a first offender 15 months after plea if no humanitarian mitigating factors exist, referring to the authority of R v So Man King [1989] 1 HKLR 142. If an offender repeats this offence, a higher sentence would be appropriate to serve as a deterrent.

9.  For Charge 2, I referred myself to the authority of HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762 where the Court of Appeal held that a sentence of 21 months was justified for a second breach of a deportation order.  As I have said, Charge 2 in this case is the defendant’s second breach of his deportation order.

10.  I have considered the authority I have been referred to, the facts of this case, the defendant’s previous record, his family background and mitigation, and his plea.

11.  For Charge 1, after taking into account all those factors, I take a starting point of 2 years and 3 months.  The defendant is entitled to a discount of one-third for his plea.  For Charge 1 he will be sentenced to 18 months’ imprisonment.

12.  For Charge 2, I take a starting point of 2 years and 6 months.  The defendant is entitled to a discount of one-third for his plea.  For Charge 2 he is sentenced to 20 months’ imprisonment.

13.  Considering the totality principle, I order 4 months of Charge 1 to run consecutively to Charge 2 and the balance concurrently.  Accordingly, the defendant is sentenced to a total of 2 years’ imprisonment.