A A
DCCC608/2010
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO. 608 OF 2010 C
D
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HKSAR
E E
v.
F PHAM Van-tuan F
G ---------------------- G
Before: Deputy District Judge G. Lam
H Date: 20 July 2010 at 2.37 pm H
Present: Ms Ranee Khubchandani, PP, of the Department of
Justice, for HKSAR
I Mr John Pickavant of Messrs John M. Pickavant & Co., I
assigned by the Director of Legal Aid, for the
J Defendant J
Offence: (1) Possession of a dangerous drug (管有危險藥物)
(2) Remaining in Hong Kong without the authority of
K the Director of Immigration after having landed K
unlawfully in Hong Kong (在香港非法入境後未得處長授權
L 而留在香港) L
(3) Breach of deportation order (違反遞解離境令)
M M
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N N
Reasons for Sentence
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P P
1. The defendant pleaded guilty to 3 offences, namely
"Possession of a dangerous drug" (Charge 1), "Unlawful remaining
Q Q
in Hong Kong" (Charge 2) and "Breach of deportation order"
R (Charge 3). R
S Summary of Facts S
2. At about 6:00 pm on 25 March 2010, police officers
T stopped the defendant for enquiry outside No.80 Pei Ho Street, T
Sham Shui Po, Kowloon. PC 11054 (PW1) asked him to show proof of
U U
his identity, he informed PW1 in Cantonese that he sneaked into
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Hong Kong from Vietnam and that he did not have any identity
card. PW1 searched the defendant and found inside the left front
B B
pocket of his jeans a piece of tinfoil which contained a plastic
C packet containing suspected dangerous drugs. PW1 arrested the C
defendant.
D D
3. The defendant is the subject of a Deportation Order
E E
issued by the Permanent Secretary for Security on 9 March 2006
under the Immigration Ordinance (Cap.115). He was first deported
F F
on 7 April 2006. Thereafter, the defendant was deported from
G Hong Kong 2 more times under the same order respectively on 29 G
October 2007 and 8 May 2009.
H H
4. In his cautioned interviews, the defendant admitted,
I I
through Vietnamese interpreters, that he entered Hong Kong
illegally on 24 March 2010 from Shenzhen by hiding under a truck.
J J
By doing so, he knew that he was in breach of the deportation
K
order made against him. At about 2:00 pm on 25 March 2010, he K
bought some "white powder" at $50 from an unknown male at an
L unknown park for his own consumption. L
M 5. The Government Chemist examined the drug seized from M
the defendant and confirmed that it is 0.14 gramme of a mixture
N N
containing heroin hydrochloride.
O O
Mitigation & Sentence
P 6. The defendant is now 26 years old. He has numerous P
criminal records including 3 convictions of "Unlawful remaining
Q in Hong Kong" and 1 conviction of "Breach of deportation order". Q
He also has convictions related to "Theft" and "Dutiable Goods".
R R
7. Mr. Pickavant informed me that the defendant is a
S S
farmer from Northern Vietnam. He is divorced and has a 6-year-
T old daughter. He became addicted to drugs in the past 12 months. T
The defendant came to Hong Kong to earn some money for his
U daughter. U
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8. To assist the court with sentencing, Mr. Pickavant
submitted 3 cases, namely HKSAR v Mohammad Shehzad HCMA 793/2007,
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HKSAR v Muhammad Kakeer HCMA 843/2006 and HKSAR v Nguyen Van
C Hien HCMA 947/1998. I have read them all. C
D 9. I will deal with Charges 2 and 3 first. Charge 2 is D
the defendant's 4th conviction of "Unlawful remaining in Hong
E E
Kong". For the same offence, he was previously sentenced to 10
months, 15 months and 16 months imprisonment. Clearly, a
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sentence which carries a substantial and meaningful deterrent
G effect is required this time. I will adopt a starting point of G
30 months. One-third discount is given for the guilty plea,
H reducing to the sentence to 20 months. Apart from this, I see no H
other mitigating factors which warrant any further discount. The
I I
sentence I pass for Charge 2 is 20 months.
J J
10. Charge 3 is the defendant's 2 nd conviction of "Breach
K
of deportation order". He was sentenced to 18 months K
imprisonment before. Similarly, a deterrent sentence is required
L this time. Beeson J in Mohammad Shehzad recognized that a L
sentence of 21 months imprisonment [after plea] is justified for
M a 2nd breach of deportation order 1 . Hence, I will adopt a M
starting point of 31.5 months. One-third discount is given for
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the guilty plea, reducing to the sentence to 21 months. Apart
from this, I see no other mitigating factors which warrant any
O O
further discount. The sentence I pass for Charge 3 is 21 months.
P P
11. For Charge 1, I note that this is the defendant's 1 st
Q drug-related offence. The quantity of heroin involved is small. Q
I will adopt a starting point of 9 months imprisonment. One-
R R
third discount is given for the guilty plea, reducing to the
sentence to 6 months. Apart from this, I see no other mitigating
S S
factors which warrant any further discount. The sentence I pass
T for Charge 1 is 6 months. T
U 1 U
Her Ladyship agreed with the decision in HKSAR v Cortz Emily Bisoy [2002] 2 HKLRD 762 (see para. 12 of
the judgment).
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12. Regarding the totality of Charges 2 and 3, I have
B B
borne in mind the authorities submitted by Mr. Pickavant. I
C order 10 months of Charge 3 to be served consecutive to Charge 2. C
D 13. In relation to Charge 1, the Court of Appeal in HKSAR D
v LEE Kwai Wing CACC 56/2008 held "If a defendant, having
E E
entered and remained in Hong Kong illegally, commits another
offence, the sentence for the 'unlawful remaining' charge should
F F
run consecutively to the sentence for the other offence. The
G offences are separate and distinct." On this basis, I order the G
sentence of Charge 1 to be served consecutive to Charges 2 and 3.
H In other words, the total prison term the defendant will serve H
for all 3 charges is 36 months.
I I
J J
K K
(G. Lam)
L Deputy District Judge L
M M
N N
O O
P P
Q Q
R R
S S
T T
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