HKSAR v. DANG VAN KHU

HCMA93/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.93 OF 2000

(On Appeal from SKCC3566 OF 1999)

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J U D G M E N T

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1. The appellant, a Vietnamese, pleaded guilty before the learned magistrate on 5 January 2000 to one count of remaining in Hong Kong without the authority of the Director of Immigration, contrary to section 38(1)(b) of the Immigration Ordinance, Cap.115.

2. The brief facts of the case, which was admitted by the appellant, showed that he had admitted to a police officer to having sneaked into Hong Kong illegally by boat on 19 December 1999.

3. In sentencing, the learned magistrate regarded himself as being bound by the case of R v. So Man King [1989] 1 HKLR 142. He further reminded himself that there is no distinction between illegal immigrants from the Mainland and those from Vietnam as was decided in the case Nguyen Thi Tham, HCMA747/1996 and Pham Dinh Ouyet, HCMA900/1996. The learned magistrate was satisfied that no humanitarian ground existed to warrant a reduction in the sentence and accordingly sentenced the appellant to 15 months' imprisonment. Against this sentence, the appellant now appeals.

4. Having heard the appellant this morning, I am satisfied that there is no good grounds of appeal. The case of So Man King decided that 15 months sentence is to be used as a basis guideline in offences of this type. The sentence of 15 months cannot be said to be manifestly excessive, there being no factor which warrants the reduction of that basic guideline of 15 months' imprisonment. Neither can the learned magistrate be said to be wrong in principle in imposing the sentence that he did. Quite the contrary, the learned magistrate had applied the correct principles in law as he did in so sentencing the appellant.

5. This appeal is therefore dismissed.