A A
DCCC1031/2010
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1031 OF 2010
C C
----------------------
D D
HKSAR
E v. E
Ngo Quang Toan
F F
----------------------
G G
Before: H H Judge Anthea Pang
Date: 15 October 2010 at 11.19 am
H Present: Mr Alex Wong, PP, of the Department of Justice, for H
HKSAR
Ms Eleanor Cheng, of K Y Lo & Co., assigned by the
I Director of Legal Aid, for the Defendant I
Offence: (1) Burglary (入屋犯法罪)
J (2) Remaining in Hong Kong without the authority of J
the Director of Immigration after having landed
unlawfully in Hong Kong (在香港非法入境後未得入境事務
K K
處處長授權而留在香港)
(3) Breach of deportation order (違反遞解離境令)
L L
---------------------
M Reasons for Sentence M
N --------------------- N
1. The defendant pleaded guilty to the following three
O O
charges: 1st charge, burglary, contrary to section 11(1)(a)
and (4) of the Theft Ordinance, Cap. 210; 2nd charge, unlawful
P P
remaining, contrary to section 38(1)(b) of the Immigration
Q Ordinance, Cap. 115; 3rd charge, breach of deportation order, Q
contrary to section 43(1)(a) of the Immigration Ordinance,
R Cap. 115. R
S S
2. The facts admitted by the defendant and which gave
rise to the charges were relatively simple. In the small hours
T T
of 26 July 2010, the defendant damaged the ventilation fan of a
U warehouse and climbed inside the premises through it. A short U
while later, the defendant climbed out from the premises and
CRT23/15.10.2010/ES 1 DCCC1031/2010/Sentence
V V
A A
tried to flee. He did not succeed in taking away any properties
as the owner of the premises later confirmed that he had
B B
suffered no loss other than the damage done to the ventilation
C fan. Since the defendant’s actions had been noticed by the C
police, the police intercepted and arrested him when he climbed
D out from the premises. D
E E
3. Under caution, the defendant said he was a Vietnamese
and that he entered Hong Kong unlawfully from Shenzhen. At the
F F
time, a deportation order which was issued in the year 2000 was
G in force against the defendant and he was prohibited from being G
in Hong Kong.
H H
4. The defendant is now aged 42. Since 1991, he has been
I I
before the court on seven occasions. He has one burglary
conviction in 1998 and, to date, he has six unlawful remaining
J J
convictions and five breach of deportation order convictions. He
K
was first deported to Vietnam in year 2000 and was repeatedly K
re-deported in 2002, 2005, 2006, 2008 and 2010. The last
L deportation was effected on 15 March 2010, yet, just a few L
months later, he was back in Hong Kong again in July and
M committed these offences. M
N N
5. Ms Cheng told the court that the defendant is married
and has a child of four years old. His wife and child live in
O O
North Vietnam. He himself is chronically ill because he
P contracted AIDS in 2003. Ms Cheng also said that the defendant P
has received no education and he was unemployed at the time of
Q his arrest. Q
R 6. What is clear in this case is that the defendant is a R
persistent offender. The previous sentences imposed on him did
S S
not have sufficient deterrent effect and he repeatedly offended
and re-entered Hong Kong. He pays no attention to the
T T
deportation order and this time, he found his way to Hong Kong
U by entering from Shenzhen. As the defendant was unemployed and U
his immediate family members were in Vietnam, it would appear
CRT23/15.10.2010/ES 2 DCCC1031/2010/Sentence
V V
A A
that he came to Hong Kong for no particular purpose other than
to commit these offences. This is an aggravating factor. The
B B
fact that he is suffering from a chronic illness is no excuse.
C C
7. For burglary of non-domestic premises, it is well
D settled that a term of 30 months is appropriate. This is what I D
am going to adopt as the starting point for charge 1. The
E E
defendant pleaded guilty and he will be given one-third
reduction for his plea. Therefore, he is to serve a term of
F F
20 months for charge 1.
G G
8. For charge 2, as the defendant is a repeated offender
H with an appalling record, I consider a more severe sentence is H
required in order to deter him. By this, I am of course not
I I
saying that he should be sentenced for his previous offences but
that in view of his record, I take the view that a more severe
J J
sentence is necessary in order to achieve the deterrent effect.
K
Therefore, I am going to impose a term of 22 months instead of K
the usual term of 15 months after a guilty plea as laid down in
L R v So Man King & Ors [1989] 1 HKLR 142. This term of 22 months L
is imposed after taking into account his guilty plea for this
M charge. M
N N
9. For charge 3, again, given the defendant’s previous
breaches of the deportation order, it is clear that he pays no
O O
heed to the order and a deterrent sentence is called for. I
P share the sentiment expressed by the Hon Lugar-Mawson J in P
HKSAR v Vu Dinh Phong HCMA 1091/2000 (unreported). In this case,
Q it is only by sentencing the defendant more severely that there Q
can be any hope of this defendant getting the message that he is
R R
not permitted to be in Hong Kong. Therefore, the starting point
which I am going to adopt is one of 3 years. He pleaded guilty
S S
and will be given one-third reduction for his plea. Therefore,
T he is going to serve 2 years’ imprisonment for this charge. T
U U
CRT23/15.10.2010/ES 3 DCCC1031/2010/Sentence
V V
A A
10. The immigration offences are separate and distinct
from his burglary offence and the sentences should run
B B
consecutively. Having considered the totality principle, I order
C that the sentence in respect of charge 2 is to run wholly C
consecutively to that of charge 1 and that 1 year of the term in
D respect of charge 3 is to run wholly consecutively to those of D
charges 1 and 2, making a total of 54 months’ imprisonment. The
E E
defendant is therefore to serve a term of 54 months’
imprisonment.
F F
G G
H H
(Anthea Pang)
District Judge
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT23/15.10.2010/ES 4 DCCC1031/2010/Sentence
V V
A A
DCCC1031/2010
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1031 OF 2010
C C
----------------------
D D
HKSAR
E v. E
Ngo Quang Toan
F F
----------------------
G G
Before: H H Judge Anthea Pang
Date: 15 October 2010 at 11.19 am
H Present: Mr Alex Wong, PP, of the Department of Justice, for H
HKSAR
Ms Eleanor Cheng, of K Y Lo & Co., assigned by the
I Director of Legal Aid, for the Defendant I
Offence: (1) Burglary (入屋犯法罪)
J (2) Remaining in Hong Kong without the authority of J
the Director of Immigration after having landed
unlawfully in Hong Kong (在香港非法入境後未得入境事務
K K
處處長授權而留在香港)
(3) Breach of deportation order (違反遞解離境令)
L L
---------------------
M Reasons for Sentence M
N --------------------- N
1. The defendant pleaded guilty to the following three
O O
charges: 1st charge, burglary, contrary to section 11(1)(a)
and (4) of the Theft Ordinance, Cap. 210; 2nd charge, unlawful
P P
remaining, contrary to section 38(1)(b) of the Immigration
Q Ordinance, Cap. 115; 3rd charge, breach of deportation order, Q
contrary to section 43(1)(a) of the Immigration Ordinance,
R Cap. 115. R
S S
2. The facts admitted by the defendant and which gave
rise to the charges were relatively simple. In the small hours
T T
of 26 July 2010, the defendant damaged the ventilation fan of a
U warehouse and climbed inside the premises through it. A short U
while later, the defendant climbed out from the premises and
CRT23/15.10.2010/ES 1 DCCC1031/2010/Sentence
V V
A A
tried to flee. He did not succeed in taking away any properties
as the owner of the premises later confirmed that he had
B B
suffered no loss other than the damage done to the ventilation
C fan. Since the defendant’s actions had been noticed by the C
police, the police intercepted and arrested him when he climbed
D out from the premises. D
E E
3. Under caution, the defendant said he was a Vietnamese
and that he entered Hong Kong unlawfully from Shenzhen. At the
F F
time, a deportation order which was issued in the year 2000 was
G in force against the defendant and he was prohibited from being G
in Hong Kong.
H H
4. The defendant is now aged 42. Since 1991, he has been
I I
before the court on seven occasions. He has one burglary
conviction in 1998 and, to date, he has six unlawful remaining
J J
convictions and five breach of deportation order convictions. He
K
was first deported to Vietnam in year 2000 and was repeatedly K
re-deported in 2002, 2005, 2006, 2008 and 2010. The last
L deportation was effected on 15 March 2010, yet, just a few L
months later, he was back in Hong Kong again in July and
M committed these offences. M
N N
5. Ms Cheng told the court that the defendant is married
and has a child of four years old. His wife and child live in
O O
North Vietnam. He himself is chronically ill because he
P contracted AIDS in 2003. Ms Cheng also said that the defendant P
has received no education and he was unemployed at the time of
Q his arrest. Q
R 6. What is clear in this case is that the defendant is a R
persistent offender. The previous sentences imposed on him did
S S
not have sufficient deterrent effect and he repeatedly offended
and re-entered Hong Kong. He pays no attention to the
T T
deportation order and this time, he found his way to Hong Kong
U by entering from Shenzhen. As the defendant was unemployed and U
his immediate family members were in Vietnam, it would appear
CRT23/15.10.2010/ES 2 DCCC1031/2010/Sentence
V V
A A
that he came to Hong Kong for no particular purpose other than
to commit these offences. This is an aggravating factor. The
B B
fact that he is suffering from a chronic illness is no excuse.
C C
7. For burglary of non-domestic premises, it is well
D settled that a term of 30 months is appropriate. This is what I D
am going to adopt as the starting point for charge 1. The
E E
defendant pleaded guilty and he will be given one-third
reduction for his plea. Therefore, he is to serve a term of
F F
20 months for charge 1.
G G
8. For charge 2, as the defendant is a repeated offender
H with an appalling record, I consider a more severe sentence is H
required in order to deter him. By this, I am of course not
I I
saying that he should be sentenced for his previous offences but
that in view of his record, I take the view that a more severe
J J
sentence is necessary in order to achieve the deterrent effect.
K
Therefore, I am going to impose a term of 22 months instead of K
the usual term of 15 months after a guilty plea as laid down in
L R v So Man King & Ors [1989] 1 HKLR 142. This term of 22 months L
is imposed after taking into account his guilty plea for this
M charge. M
N N
9. For charge 3, again, given the defendant’s previous
breaches of the deportation order, it is clear that he pays no
O O
heed to the order and a deterrent sentence is called for. I
P share the sentiment expressed by the Hon Lugar-Mawson J in P
HKSAR v Vu Dinh Phong HCMA 1091/2000 (unreported). In this case,
Q it is only by sentencing the defendant more severely that there Q
can be any hope of this defendant getting the message that he is
R R
not permitted to be in Hong Kong. Therefore, the starting point
which I am going to adopt is one of 3 years. He pleaded guilty
S S
and will be given one-third reduction for his plea. Therefore,
T he is going to serve 2 years’ imprisonment for this charge. T
U U
CRT23/15.10.2010/ES 3 DCCC1031/2010/Sentence
V V
A A
10. The immigration offences are separate and distinct
from his burglary offence and the sentences should run
B B
consecutively. Having considered the totality principle, I order
C that the sentence in respect of charge 2 is to run wholly C
consecutively to that of charge 1 and that 1 year of the term in
D respect of charge 3 is to run wholly consecutively to those of D
charges 1 and 2, making a total of 54 months’ imprisonment. The
E E
defendant is therefore to serve a term of 54 months’
imprisonment.
F F
G G
H H
(Anthea Pang)
District Judge
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT23/15.10.2010/ES 4 DCCC1031/2010/Sentence
V V