HKSAR v. DANG THE CUONG (ALSO KNOWN AS DANG THE COONG)

DCCC 180/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 180 OF 2016

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of “Breach of deportation order”, contrary to section 43(1)(a) of the Immigration Ordinance, Cap. 115 (the first charge) and one count of “Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong”, contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115 (the second charge).

Facts

2.  On 29 June 2015, a security guard of a container terminal found the defendant wandering around. Case was then reported.  Upon inquiry, the defendant told the police officer that he entered Hong Kong illegally for seeking medical treatment and treatment for his drug addiction. 

3.  At the material time, the defendant had been subject to a deportation order dated 25 September 2006. 

4.  In a subsequent interview under caution, the defendant admitted sneaking into Hong Kong illegally on 29 June 2015.  He knew that he had breached the deportation order. 

Mitigation

5.  The defendant is aged 38. He is a Vietnamese, married with a son and a daughter.  He has 7 previous conviction records, 3 relate to unlawful remaining in Hong Kong and 2 relate to breach of deportation order.

6.  In mitigation, Mr Chong submitted that the defendant suffers from AIDS, lung and liver diseases.  He borrowed around HK$10,000 in Vietnam for seeking medical treatment there.  He was unable to repay the debt.  His wife and his children left him.  He therefore came to Hong Kong for seeking medical treatment and treatment for his drug addiction. Mr Chong referred to 3 cases[1] regarding the range of sentences to be imposed and also submitted that the sentences for the two offences should run concurrently. 

Sentence

7.  The maximum sentence for the first charge is 7 years’ imprisonment.  For the second charge, the maximum sentence is a fine of HK$25,000 and 3 years’ imprisonment.  Therefore, the offence of breach of deportation order is more serious than the offence of unlawful remaining.    

8.  For the first charge, the usual starting point after trial is 27 months’ imprisonment (see HKSAR v Ta Dinh Son, CACC 348/2013).  The sentence can be adjusted upward in case of a repeated offender.  For the second to seventh commission of this offence, the starting point ranges from 36 to 42 months’ imprisonment (see HKSAR v Bui Van Khai, CACC 175/2012, HKSAR v Pham Van Hung, CACC 14/2011 and HKSAR v Ta Dinh Son, CACC 348/2013).

9.  For the second charge, the usual sentence after plea for a first offender is 15 months’ imprisonment. Again, the sentence can be adjusted upward in case of a repeated offender.  The starting point after trial can range from 27 to 30 months (see HKSAR v Bui Van Khai, CACC 175/2012 HKSAR v Pham Van Hung, CACC 14/2011 and HKSAR v Ta Dinh Son, CACC 348/2013).

10.  Further, according to the Court of Appeal’s guideline, the sentences for the first charge and the second charge should run concurrently.

11.  In respect of the first charge, since it is the defendant’s third conviction, I adopt a starting point of 3 years’ imprisonment.  He is entitled to the usual one-third discount for his guilty plea.  The sentence is therefore reduced to 2 years’ imprisonment.

12.  For the second charge, since it is the defendant’s fourth conviction, a starting point of 27 months is appropriate.  The sentence is reduced to 18 months for the defendant’s guilty plea.

13.  Since the sentences for the two charges should run concurrently, the total sentence imposed on the defendant is 2 years’ imprisonment.