HKSAR v. PHAM VAN TUAN

HCMA221/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.221 OF 2004

(ON APPEAL FROM KCCC 1591 OF 2004)

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J U D G M E N T

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1. The appellant Pham Van Tuan pleaded guilty before a magistrate to unlawfully remaining in Hong Kong (charge 1) and breach of deportation order (charge 2). He was sentenced to 16 months' imprisonment for charge 1 and two years' imprisonment for charge 2. The magistrate ordered six months of the sentence on charge 1 to be consecutive to the two years term for charge 2. The total sentence is 2 1/2 years' imprisonment. The appellant now appeals against sentence.

The facts

2. In 1994, a deportation order was issued by the Director of Immigration after the appellant had served an eight years sentence for robbery. Thereafter, the defendant was convicted of breach of deportation order and unlawfully remaining on three occasions in 1999, 2001 and 2002.

3. On 28 January 2004, the defendant sneaked in from the Mainland and was stopped by the police for identity check. His deportation status was revealed.

Reasons of the magistrate

4. For charge 2, the magistrate took into account this is the 4th conviction of breach of deportation order. He considered that the appellant's persistent re-offending an aggravating factor and an enhanced sentence was necessary. The magistrate took the maximum sentence of three years' imprisonment as the starting point and reduced it to two years' upon plea.

5. For charge 1, the magistrate took the starting point of two years' imprisonment and reduced it to 16 months' upon plea. He made the two terms partly consecutive. The total sentence is 2 1/2 years' imprisonment.

Grounds of appeal

6. The appellant filed the general ground that the sentence is too severe. He further submitted that he had lived in Hong Kong for 10 years as a refugee in closed camp pending screening. Upon repatriation to Vietnam, he could not regain his registration of residence. He was unable to finding any job and had no means of support. Hence, he returned to Hong Kong on a few occasions to look for jobs. When he was imprisoned in Hong Kong in the past, his father passed away, leaving his mother aged 67 suffering from hypertension. He wanted to be released early in order to see his mother again.

Consideration upon appeal

7. Under section 43(1)(ii) of the Immigration Ordinance, Cap.115, the maximum sentence for breach of deportation order upon summary conviction is three years' imprisonment. The appellant is a 4th time repeated offender in breach of deportation order. The magistrate took this into account and considered a deterrent sentence appropriate. He adopted the maximum sentence of three years' imprisonment as starting point.

8. The offence of breach of deportation order is committed by contravention of the order and being in Hong Kong while the order is in force. There is little in consideration of a gradation of seriousness in the way the offence is committed. Further, the appellant is a 4th time repeated offender and a deterrent sentence is justified. I see nothing wrong in principle that the magistrate adopted the maximum sentence as the starting point upon a plea.

9. As to the charge of unlawfully remaining, the usual sentence is 15 months' imprisonment upon plea. There is nothing wrong with the sentence of 16 months' imprisonment.

10. As to the totality of the sentence, the magistrate ordered the two terms to be partly consecutive, making 2 1/2 years' imprisonment.

11. The two offences in question are separate offences. In HKSAR v. Nguyen Tuan Anh, HCMA1091/2003, per Beeson J, the appellant therein pleaded guilty to one charge of breach of deportation order and a second charge of unlawfully remaining. It was a second time he was in Hong Kong in breach of a deportation order. He was sentenced to two years' imprisonment for breach of deportation order and 16 months on unlawfully remaining and the terms were made partly consecutive, making two years and eight months in total. He argued the sentence was too severe. The appeal was dismissed.

12. In this case, I have considered the appellant's submissions and I do not find the total sentence of 2 1/2 years to be manifestly excessive. Hence, the appeal is dismissed.