HKSAR v. LE DAC LAN AND ANOTHER

DCCC 856/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 856 OF 2013

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to two charges before this court. The 1st charge is that commonly referred to as unlawfully remaining in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance. The 2nd charge is that of breach of a deportation order, contrary to section 43(1)(a) of the same ordinance.

2.  On 9 August 2013 at about 1.15 pm, police officers spotted you acting suspicious in Yee Kuk Street, Sham Shui Po.  The officer intercepted you for enquiry.  You admitted to being an illegal immigrant and failed to produce any proof of identity.  Under caution, you admitted that you entered from China and sneaked into Hong Kong illegally by hiding beneath a lorry coming from Shenzhen on 7 August 2013.  You had originally left your home in Vietnam, on 5 August 2013.  You informed the officer you came to Hong Kong to seek medical treatment as you suffer from HIV and drug addiction.  Enquiries disclosed that you were in breach of a deportation order issued in February 2009.  Under caution, you admitted that you were a deportee.

3.  You are 40 years of age and have been to court on three separate occasions of which you have three previous convictions of unlawful remaining in Hong Kong, two previous convictions of breach of deportation order and one of possession of offensive weapon totalling six previous convictions. 

4.  Your solicitor, Mr Duncan Lai, has mitigated on your behalf.  I have taken into account all that he has had to say.  He says that you came to Hong Kong for medical reasons, your health condition is deteriorating.  He recognises that your greatest mitigating factor is of course your plea of guilty. 

5.  In respect of sentence, Mr Lai has submitted two cases to this court, that is HKSAR v Bui Van Khai CACC 175/2012 and HKSAR v Pham Van Hung CACC 14/2011.  In Bui Van Khai, the facts were very similar to the present case.  The appellant in that case was convicted of unlawful remaining and a breach of a deportation order.  The defendant there also had previous similar convictions.  In this case, the court also referred to Phan Van Hung where that defendant also had previous similar convictions.  Barnes J in Bui Van Khai recognised the principle that the offence of unlawfully remaining would be more serious when there was deportation order.  Also she recognised that the underlying criminality of these two offences were the same and the sentences should run concurrently.  In that case the court held that a sentence of 2 years’ imprisonment for the two offences was a proper one after plea. 

6.  I also consider in view of your previous convictions and the present charges that the total sentence after plea should be one of 2 years’ imprisonment. 

7.  I take into account of course the case of So Man King for unlawful remaining in Hong Kong.  This is your fourth offence for unlawful remaining and in those circumstances you shall be sentenced to 20 months’ imprisonment. 

8.  This is your third offence for breach of deportation order.  In those circumstances, had I convicted you after trial I would have taken a starting point of 3 years’ imprisonment.  Giving you full credit for your plea of guilty, that term shall be reduced to one of 2 years’ imprisonment. 

9.  These sentences shall run concurrent to each other and the total term of imprisonment shall be 24 months’ imprisonment.