HKSAR v. TA DINH SON

CACC 348/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 348 OF 2013

(ON APPEAL FROM DCCC NO. 705 OF 2013)

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

Introduction

1. This is an application for leave to appeal a total sentence of 42 months’ imprisonment for one offence of attempted theft and two immigration offences.

2. The applicant pleaded guilty to three offences before Judge Tallentire in the District Court:

(1) attempted theft;

(2) remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully contrary to section 38(1) (b) of the Immigration Ordinance, Cap 115; and

(3) breach of a deportation order contrary to section 43(1) (a) of the Immigration Ordinance.

3. On 6 September 2013, the judge sentenced the applicant as follows:

(1) For the attempted theft the judge took a starting point of 18 months’ imprisonment.  He accorded the normal one-third discount for the plea of guilty; so the resulting sentence for that offence was 12 months’ imprisonment.

(2) In respect of the offence of remaining in Hong Kong without authority, he imposed a term of 18 months’ imprisonment;

(3) For the offence of breach of a deportation order, he took what he described as a starting point of 3 years’ imprisonment and, on account of the plea of guilty, reduced that to 2 years’ imprisonment.

He ordered the sentences in respect of the first and second charges to run consecutively (thus far, making a total of 30 months’ imprisonment) and then ordered 12 months in respect of the third charge to run consecutively to, the remainder concurrently with, the other sentences.  This made for a total of 42 months’ imprisonment.

4. The applicant is Vietnamese and at the time of his appearance before Judge Tallentire, he was aged 48 years.  The mitigation advanced on his behalf was that he came with his family to Hong Kong at the time of the Vietnamese refugee crisis and was detained in the Whitehead camp but lost contact with his family in 1996.  The suggestion was that despite a deportation order in 1999, he kept returning to Hong Kong in breach of that order in an attempt to relocate his wife and two daughters.  It was further said that he has now ascertained that his younger daughter is in Russia, so that he intends not to re-enter Hong Kong in the future.

Previous convictions

5. Against that suggested background, we note that he has a string of previous convictions:

- 1994 : providing false information to a police officer;

- 1997: possession of a forged or unlawfully obtained travel document or document of identity (9 months’ imprisonment)

· In August 1998, the deportation order was made.

- In May 1999 he was convicted of offences of breach of deportation order and remaining in Hong Kong without authority having landed unlawfully (12 months’ imprisonment concurrent);

· In January 2000 he was removed pursuant to the original order.

- In May 2000, he was back in Hong Kong in breach of the deportation order and convicted of possession of a forged or false travel document, of breach of the deportation order and of remaining in Hong Kong without authority having landed unlawfully.  He received a total sentence of 21 months’ imprisonment.

· He was removed again from Hong Kong on 26 July 2001.

- He was back in October 2003 when he was sentenced to a total of 27 months for breach of the deportation order and remaining unlawfully without the authority of the Director.

· He was deported pursuant to the original order yet again in June 2005.

- Back he came, and in November 2005 was sentenced to a total of 32 months’ imprisonment for breach of the deportation order and remaining unlawfully.

- In August the following year, that is in 2006, no doubt when he was in custody, he was convicted of an offence of wounding and sentenced to 12 months’ imprisonment.

· He was removed in April 2008.

- He returned in November 2008 and for the same two categories of offence was sentenced to 22 months’ imprisonment.

· He was deported in February 2010.

- But he returned in June 2010 and was sentenced to a total of 34 months’ imprisonment for offences of theft and breach of deportation order and remaining in Hong Kong without authority having landed unlawfully.

- In February 2012 he was sentenced to 8 months’ imprisonment for assault occasioning actual bodily harm, an offence which we assume was committed whilst in custody.

· He was deported pursuant to the original order in August 2012.

The present offences

6. The offences with which Judge Tallentire was concerned were committed on 29 May 2013.  The previous day, 28 May 2013, the applicant had entered Hong Kong from Shenzhen, apparently by hiding in a truck.  That entry constituted the 7^th breach of the deportation order; and accounted for the second and third charges.

7. About 11 pm on 29 May 2013, the applicant approached a 47-year-old female who was walking in Mong Kok and he attempted to snatch her necklace.  She resisted and he fled empty-handed and was caught soon thereafter.  This attempted theft formed the subject matter of the first charge.

8. The judge appeared to accept the mitigation as to the attempts by the applicant to find his family but said that the applicant could not go on breaching the deportation order.  He imposed the sentences to which we have referred to in paragraph 3 above.

The error

9. Mr Chan for the applicant, who has argued the matter ably and realistically, does not take issue with the individual sentences.  His sole point is that the judge erred in principle in ordering part of the sentence imposed for the offence of breach of the deportation order to run consecutively to the sentence for remaining in Hong Kong without authority.  Mr Chan says that the offence of remaining unlawfully in Hong Kong does not add to the culpability constituted by the breach of deportation offence under section 43.

10. We think that that submission is self-evidently correct and dicta to the same effect are to be found in other judgments, most recently in the judgment of Barnes J in HKSAR v Bui Van Khai [2013] 2 HKLRD 471.

The immigration offences compared

11. It may be that the judge’s error was occasioned by a comment in HKSAR v Pham Van Tuan CACC 272 of 2010, unreported, 18 February 2011, to the effect that “the offence of unlawfully remaining in Hong Kong of course would be more serious when there was a deportation order”; but it seems to us clear that, in context, that comment was not intended to derogate from the earlier conclusion in that judgment that the culpability inherent in the offence of being in Hong Kong in contravention of a deportation order was not aggravated by the concurrent, and inevitably consequential, offence of remaining in Hong Kong without lawful authority.  What was no doubt intended by the comment was the obvious point that to be here in breach of a deportation order was in itself a more serious offence than to be here unlawfully but not in breach of such an order.

12. That the deportation offence is more serious is evident from the penalties provided by the Ordinance.  An offence contrary to section 38(1)(b) – remaining without permission, having landed unlawfully – carries a maximum term of three years’ imprisonment; whereas an offence contrary to section 43(1)(a) – breach of a deportation order – carries a maximum term, upon indictment, of seven years’ imprisonment.  The point was correctly made by Beeson J in HKSAR v Nguyen Chi Trung, HCMA 1095 of 2001, unreported, 24 January 2002, that:

“29. The crux of the offence of a breach of deportation order does not lie solely in an offender’s illegal presence in Hong Kong, as is true for unlawfully landing or remaining, or using a false identity card. The gravamen of the offence is that a convicted person, who has no right to be in Hong Kong, and who has been prohibited from returning for a specified period, disobeys the prohibition and returns to Hong Kong.

30. A breach of a deportation order is a more serious offence than those under s. 38(1)(b) of the Immigration Ordinance ...

31. .... A sentence for such breach should be deterrent as the offence is serious.  The charge should be recognised as aiming to prevent the unlawful return to, and presence in, Hong Kong of someone who has no right to enter, or any right of abode, and to punish a convicted offender who defies an individualised prohibition.”

The correct approach

13. So the correct approach, normally, is to sentence for the deportation order offence and make such sentence run concurrently with such lesser sentence as is imposed for the section 38 offence.  We say ‘normally’ because it is conceivable that an offender may have committed a series of unlawful remaining offences but is appearing for the first time for breach of a deportation order; in which case it may be, depending on the facts, that a different disposition is warranted.

14. In the present case there was nothing to justify an order that part of the sentence for breach of the deportation order run consecutively to the sentence imposed for the section 38 offence.

15. Whilst Mr Chan takes no issue with the sentences imposed for the individual offences, it is open to this Court to revisit those sentences and then the totality.  Obviously the fact of repeated breaches of the deportation order constitutes a significant aggravating feature and a question arises whether what the judge referred to as the starting point of 3 years was adequate.

16. We say “what the judge referred to as the starting point” because what he in fact was referring to was not the starting point, but the point he reached after taking into account the aggravating feature.  In that regard, we note that some of the appellate judgments (for example HKSAR v Pham Van Hung CACC 14 of 2011, unreported, 12 August 2011, para 12) refer to the sentencing point reached after applying aggravating features as the starting point.  That, with great respect, is an approach liable to mislead.  A starting point reflects the appropriate sentence for a first offender for the particular category and type of offence, absent aggravating and mitigating features.  As the Sentencing Council in the UK has emphasised (for example in its Magistrates’ Court Sentencing Guidelines issued in 2009) a consistent application of terms such as “starting point” is essential and a starting point applies to a first-time offender who has been convicted after trial and is a point “from which the sentencer can depart to reflect aggravating or mitigating factors affecting the seriousness of the offence” (para 1(c) of those Guidelines).  By definition, a point reached only after application of aggravating features is not the point from which the sentencer has started.

17. So what is the appropriate starting point for an offence under section 43(1)(a) of Cap. 115?  We have not heard argument upon the issue and there may be cases where the offence for which, or the circumstances in which, the deportee has been removed pursuant to a deportation order are such as to make a first breach particularly serious but it would seem that, generally, for a first such offence, the starting point after trial which has been adopted is one of 27 months’ imprisonment: see Beeson J in HKSAR v Gabriel Malou Lantin, [2004] HKEC 1072 : “The authorities indicate a first offence of breach of deportation order, the starting point of 27 months would be appropriate”; and HKSAR v Mohamed Malurdeen Mohamed Riyaz [2003] HKEC 1091, per Deputy Judge Longley.  See also HKSAR v Joned Asri CACC 345 of 2012, unreported 17 April 2013, where the assumption seems to have been made that 27 months after trial for a first offender was appropriate.  The suggestion in that case (at para 19) that “the enhanced starting points ought to have flattened out after the fifth breach, that is, at 42 months imprisonment” was expressly stated to relate to the facts of that case.  Given that the maximum term for the offence is 7 years’ imprisonment, there is no ceiling at 42 months established by that judgment, though whether that sort of level might appropriately be exceeded must yield to the circumstances of the particular case.

This case

18. The starting points and resulting sentences for the offences of theft and remaining in Hong Kong without authority are not in issue in this case and we will not interfere with them.

19. In relation to the section 43 offence, the starting point should have been in the region of 27 months.  

20. The aggravating features were significant.  This was no less than the 7^th occasion of coming back into Hong Kong in breach of the deportation order and it is clear that the slightly increased sentences on some of the previous occasions have served not a jot to deter the applicant.  The judge seems to have accepted the mitigation that the applicant was looking for his family.  If so, that was, with respect, a most generous acceptance for even if that had been the reason as far back as, say, 1999 and 2000 and 2003 , by the time of these present offences in 2013, the suggestion that the applicant really thought his family might be in Hong Kong was self-evidently far-fetched; and the offences of violence for which on two occasions he has been convicted do not sit altogether comfortably with a picture of a person of good character intent on keeping a low profile while searching for members of his family.  But for the suggested personal circumstances, we think that for the section 43 offence, the appropriate (aggravated) sentence before discount for the plea was one of 4 years’ imprisonment.  With considerable hesitation, we are prepared to assume in the applicant’s favour that which the judge was prepared to assume, that there was a special circumstance which occasioned these repeated breaches.  Nonetheless with the passage of time, the weight to be given to that must necessarily wane.  We will take a point of 42 months as the point before deduction for the plea.  Giving credit for the plea of guilty, the appropriate sentence for the section 43 offence is one of 28 months’ imprisonment.

21. The sentence of 18 months in relation to the second charge ought to have been ordered to run wholly concurrently with the sentence on the third charge.  

Conclusion

22. Accordingly, we grant leave to appeal sentence, treat the hearing of the application as the appeal, and allow the appeal to the extent that we set aside the sentence of 24 months’ imprisonment in relation to the third charge and substitute therefore a sentence of 28 months’ imprisonment.  Further, we set aside the order rendering part of the sentence on the third charge to run consecutively to the sentence of the second charge; instead we order the sentence on the third charge (28 months) to run wholly concurrently with sentence on the second charge (18 months).  The sentence in respect of the first charge (attempted theft) remains unaltered (12 months) but we order that sentence to run wholly consecutively to the concurrent sentences of 28 months and 18 months’ imprisonment, making a total of 40 months’ imprisonment.

23. It is perfectly clear that the applicant’s family is not in Hong Kong.  He has told Judge Tallentire that he has found his daughter who is in Russia and that there is no need for him in the future to return to Hong Kong.  He is therefore on notice that should he return yet again to Hong Kong in breach of the deportation order, the sentence he should expect for such an offence will be materially greater than the sentence imposed on this occasion.