HKSAR v. BUI VAN KHAI AND ANOTHER

DCCC216/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 216 OF 2012

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Reasons for Sentence

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1.  D1 and D2, you two have been convicted on your own pleas of guilty to two charges which you both separately face, those being offences of remaining in Hong Kong without the authority of the Director of Immigration after having landed here unlawfully, contrary to section 38(1)B of the Immigration Ordinance, Cap. 115, Rules of Hong Kong, and breach of a deportation order, contrary to section 43(1)A of the Immigration Ordinance, Cap. 115, Laws of Hong Kong. Charges 1 and 2 relate to you, D1, and Charges 3 and 4 to you, D2.

2.  The Summary of Facts, which you have both agreed, established that you were both intercepted on 5 February of this year by police officers in the vicinity of Yen Chow Street, Sham Shui Po.  You were both searched and neither of you were in possession of any identity documents, and you both told the officers that you had entered Hong Kong illegally from Vietnam the day before. 

3.  Upon further enquiries it was established that you, D1, were in breach of a deportation order made in January 2009, and you, D2, in breach of a deportation order made in December of 2007.  When you were both interviewed by the police under caution you told them that you were both aware that deportation orders had been made against you and that you were prohibited from entering Hong Kong, but that you had come here in order to seek medical treatment.  Indeed in your case, D2, you even told the police that you entered Hong Kong illegally as you knew you could seek medical treatment whilst in prison.

4.  I have dealt with cases similar to this very recently, and it seems to me to be a worrying trend that persons such as yourselves are coming to Hong Kong deliberately in the full knowledge that you will be caught and sent to prison, where you will achieve precisely what you want, that being free medical treatment.  I have already expressed my concerns over this to counsel for the prosecution, who, I trust, will bring my concerns to the relevant personnel in the Department of Justice. 

5.  Both of you are repeat offenders.  In your case, D1, you have two previous convictions for illegally remaining in Hong Kong and one for breach of a deportation order, whilst D2, you have three previous convictions for illegally remaining and two for breach of a deportation order.

6.  In your case, D1, you are in breach of a suspended sentence imposed on you in July of 2011 for offences identical to the ones that you face today.  Noting of any moment has been put before me by way of mitigation, save for your respective pleas of guilty.  And I will give you both due credit for that.

7.  In HKSAR v Pham Van Tuan [2009] HKCU 776 and HCMA282/2009, the starting point of 36 months’ imprisonment in relation to breach of a deportation order was said to be “in line with authorities”. Accordingly, I sentence you both as follows:-

8.  With regard to you, D1, you are sentenced to 18 months’ imprisonment on Charge 1.  This sentence already takes account of your plea of guilty.  On Charge 2 I adopt a starting point of 3 years’ imprisonment, but due to your plea of guilty I shall reduce that by one-third, coming to 2 years' imprisonment on Charge 2.  Due to the question of totality of sentence, I order 18 months of this sentence to run consecutively to the sentence on Charge 1, arriving at 3 years’ imprisonment. 

9.  In addition, I activate the suspended sentence of 18 months’ imprisonment imposed on you in July of 2011.  But once again, due to the question of totality of sentence, I will order that 9 months of this 18 months be ordered to run consecutively to the sentence on Charge 1, arriving at a total sentence, in your case, of 3 years and 9 months’ imprisonment in all. 

10.  With respect to you, D2, you are sentenced to 18 months’ imprisonment in respect of Charge 3.  Once again this sentence already takes account of your plea of guilty.  On Charge 4 I adopt a starting point of 3 years’ imprisonment, but will reduce this by one-third to take account of your plea of guilty, coming to 2 years’ imprisonment on Charge 4.  Due to the question of totality of sentence, once again I order 18 months of this sentence to run consecutively to the sentence on Charge 3, arriving at a total sentence in your case of 3 years’ imprisonment.