HKSAR v. PHAM VAN SIEN

HCMA1127/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.1127 OF 1999

(On Appeal from ESCC3089/1999)

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J U D G M E N T

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1. The appellant pleaded guilty before Mr Candy at Eastern Magistracy to two charges : breach of deportation order, to which he was sentenced to two years' imprisonment; and remaining in Hong Kong without the authority of the Director of Immigration, for which he was sentenced to 18 months, three months of which were to be served consecutively to the sentence on the first charge, thereby making a total of two years and three months. He now appeals against the sentence on a few bases, the first of which is that the two years' imprisonment imposed upon him was manifestly excessive, and the second is that the learned magistrate appeared to have been sentencing him on the basis of his previous convictions for similar offences : breach of the deportation order, which occurred in previous years in 1994, 1995 and 1997.

2. Mr McGowan appearing for the appellant, had sought to submit that the sentences on the two charges ought not to have been, even though partly, consecutive. Counsel makes the point that a trend has developed in the courts whereby illegal immigrants for all places are treated by the courts in the same way irrespective of where they may have come from, and that if the trend is to be followed, then it follows that illegal immigrants from China could not be charged with the offence of breach of deportation order because no deportation order is made against illegal immigrants from China.

3. The fourth basis of the appeal is that there are humanitarian grounds in this case which will justify a reduction in the sentence. The humanitarian grounds are set out in the affidavit of the appellant which was filed and for which leave was sought this morning and granted. In the appellant's affirmation, he set out the fact that his father is dead and his mother, living in Vietnam, has no one else to look after her. She had an operation in January 2000 for gall bladder stone, but he presently has no news about her condition.

4. Mr McGowan has quoted a number of cases which appear to show that even in the case of a defendant with similar previous convictions for breach of deportation order, 15 months were imposed in the previous cases for that offence. In the case particularly of R v. Talaw, MA910/1996, that appellant had been deported three times and when he was arrested on the fourth occasion, he was sentenced to 24 months by the Magistrate, but that sentence was reduced to 15 months by Keith J in October 1996. 15 months was also the sentence imposed in two other cases.

5. Mr Cheung for the respondent, submitted that breach of deportation order should be a more serious offence than illegally remaining in Hong Kong which, according to "So Man King", if there are previous entries should attract 18 months even on a plea. Mr Cheung submitted that the sentences ought to be consecutive because otherwise there will be no punishment for a defendant who knowingly breaches a deportation order imposed upon him.

6. In all the cases that Mr McGowan quoted, the sentences for the two offences appeared to have been concurrent in each case, apart from R v. Bui Duc Tho, MA903/1995 where Duffy J agreed with the Magistrate that the sentences should be consecutive because Duffy J said :

"It is obviously important that those in breach of Deportation Orders are seen to serve separate and distinct sentences for that offence. ..."

7. I take the view that because these offences arise from the same incident, namely, returning to Hong Kong after having previously been deported and entering Hong Kong without the authority of the Director of Immigration, the sentences for these two offences ought to be concurrent. I take the view that two years imposed by the Magistrate is excessive and that the appropriate sentence for the first offence should be one of 15 months. I think it is trite law that a defendant ought not to be sentenced more severely because of his previous convictions. So on the first charge, the sentence is reduced to one of 15 months. On the second charge, the sentence of 18 months imposed by the Magistrate would appear to be the correct sentence. The two sentences are to be served concurrently, making a total of 18 months.

8. I now turn to the humanitarian grounds raised by the appellant. Mr Cheung submits that he should have known of his mother's condition before he left Vietnam to come to Hong Kong. That may be so, but Mr McGowan is right to point out that obviously his mother's condition deteriorated after the appellant left Vietnam because he was arrested in Hong Kong in October 1999, and the operation was in January 2000. So I am prepared to give a discount for that humanitarian factor which obviously was not made known to the Magistrate, and hence the Magistrate could not have considered that.

9. For that last ground, I will reduce the sentence by six months, thereby making the total sentence of 12 months to be served.