由此
A A
B B
DCCC 1286/2010
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 1286 OF 2010
E E
--------------------
F HKSAR F
against
G G
PHAM Van-hung
H
-------------------- H
I I
Coram: Deputy District Judge Chainrai
J Date: 4th January 2011 J
Present: Mr. William SIU, Public Prosecutor, of the Department of
K K
Justice, for HKSAR
L Mr. TSANG Man Hing, Johnson of M/S. Tsang, Chan & Woo L
assigned by D.L.A. for the Defendant
M M
Offence: (1) Remaining in Hong Kong without the authority of the
N Director of Immigration after having landed unlawfully in N
Hong Kong
O O
(2) Breach of deportation order
P P
Q REASONS FOR SENTENCE Q
R R
1. The Defendant has been convicted on his own plea on 2
S counts on the amended indictment, namely count 1 of remaining in Hong S
Kong without the authority of the Director of Immigration after having
T T
U U
V V
由此
- 2 -
A A
B landed unlawfully in Hong Kong, contrary to Section 38(1)(b) of the B
Immigration Ordinance, Cap. 115 and count 2 of breach of deportation
C C
order, contrary to Section 43(1)(a) of the Immigration Ordinance, Cap.
D 115. D
E E
2. Facts admitted by the Defendant disclose that he is
F Vietnamese and he has no right of abode in Hong Kong. On 16 December, F
2003, a deportation order was made against the Defendant requiring him to
G G
leave Hong Kong and prohibiting him from being in Hong Kong at any
H time thereafter. He was deported to Vietnam on 15 January, 2004. At 5.05 H
p.m. on 26 October, 2010, he was intercepted in the Sham Shui Po area by
I I
a plainclothes police officer on anti-crime patrol duty for an identity card
J check and inquiry. The Defendant failed to produce any proof of identity J
and disclosed that he was an illegal immigrant who had sneaked into Hong
K K
Kong that same day. He was arrested. When interviewed under caution
L L
subsequently in the presence of a Vietnamese interpreter, he said he had
M
sneaked into Hong Kong at 8 a.m. that day by hiding beneath a truck. At M
another interview under caution on 27 October, 2010, he admitted the
N N
offences and stated he knew that he was restricted by the Court of Hong
O Kong from entering Hong Kong again. O
P P
3. In passing sentence, I have considered all that has been urged
Q upon me in mitigation by Counsel on behalf of the Defendant. He has 6 Q
previous court appearances in Hong Kong. His record dates back to 2003.
R R
He has 11 previous convictions, including 5 for illegal remaining and 4
S for breach of deportation order. His last convictions were on 25 March, S
2009, when he was sentenced to 21 months’ imprisonment for illegal
T T
remaining and 12 months’ imprisonment for breach of deportation order,
U U
V V
由此
- 3 -
A A
B to be served concurrently. He was released from prison on 26 May, 2010, B
according to his antecedent statement. He has returned to Hong Kong very
C C
shortly after being sent back to Vietnam after serving that prison term. He
D is now aged 32 years and recently divorced, with a son aged 11 years and a D
daughter aged 8 years. He has received secondary education, and is a
E E
farmer in Vietnam. He contracted AIDS in 1999. I am told that in 1998, he
F was a prosecution witness and gave evidence against a fellow Vietnamese F
who was charged with trafficking in a dangerous drug here in Hong Kong.
G G
That Vietnamese was convicted and sentenced to 10 years’ imprisonment.
H That Vietnamese was recently released from prison, and threatened the H
Defendant’s life unless the Defendant paid him money. The Defendant was
I I
unable to pay, and therefore chose to leave Vietnam and come back to
J Hong Kong. J
K K
4. I have also considered the 2 authorities handed to me by the
L L
Prosecution and the Defence, namely HKSAR v. Pham Van Tuan, HCMA
M
221/2004 by the Prosecution and HKSAR v. Muhammad Kakeer, HCMA M
843/2006 by the Defence.
N N
O 5. In determining the sentence for these offences I have to bear O
in mind that the Defendant is a repeated offender in respect of illegal
P P
entries and the breach of his Deportation Order.
Q Q
6. For offences of illegally remaining in Hong Kong, the Court
R R
of Appeal in R. v. So Man-king [1989] 1 HKLR 142 held that allowing for
S a plea of guilty, a sentence of 15 months’ imprisonment should be used as S
the basic guideline unless there are strong humanitarian considerations to
T T
warrant a departure from that guideline. The Court of Appeal further held
U U
V V
由此
- 4 -
A A
B that a court should take into account, by upward adjustment, any previous B
unlawful entry.
C C
D 7. There are no guideline sentences for offences of breach of D
deportation orders. In HKSAR v. Muhammad Kakeer, supra, Deputy
E E
High Court Judge M. Poon, as she then was, said:-
F F
G “10. In HKSAR v. Nguyen Chi Trung, HCMA1095/2001, G
Beeson J reviewed the earlier authorities saying that the
customary sentence for offence of breach of deportation order
H was 12 to 16 months’ imprisonment (HKSAR v. Do Thi Hue, H
HCMA873/2001 and HKSAR v. Vu Thi Wan Anh [2002] 2
I HKLRD 284). Declining to set down guidelines, Beeson J said : I
“29. The crux of the offence of a breach of deportation
J order does not lie solely in an offender’s illegal J
presence in Hong Kong, as is true for unlawfully
landing or remaining, or using a false identity
K K
card. The gravamen of the offence is that a convicted
person, who has no right to be in Hong Kong, and who
L has been prohibited from returning for a specified L
period, disobeys that prohibition and returns to Hong
Kong.
M M
30. A breach of a Deportation Order is a more serious
N offence than those under s.38(1)(b) of the Immigration N
Ordinance. That is indicated by the legislative
provision that enables such a breach to be dealt with on
O indictment, with a maximum sentence of 7 years. The O
sentencing range of 12 – 16 months that prevails at
P
present seems to have been reached incidentally by P
reference to, and association with, other offences under
the Immigration Ordinance. No Court of Appeal
Q guidelines or tariffs exist and cases on sentence are Q
persuasive rather than binding on this court.
R R
31. Some principles do emerge. A sentence for such
breach should be deterrent as the offence is
S serious. The charge should be recognised as aiming to S
prevent the unlawful return to, and presence in, Hong
Kong of someone who has no right to enter, nor any
T right of abode, and to punish a convicted offender who T
defies an individualised prohibition.”
U U
V V
由此
- 5 -
A A
B B
11. In that case, a sentence of 18 months’ imprisonment on a
plea was upheld.”
C C
D
The courts view such offences as more serious than offences of illegal D
remaining and have upheld starting points of 27 months’ imprisonment for
E E
a first offence of breach of deportation order (see for example HKSAR v.
F Nguyen Chi-trung, HCMA 1095/2001) as applied in HKSAR v. Cortez F
Emily Bisoy [2002] 2 HKLRD 762. Again, a court should take into
G G
account, by upward adjustment, any previous breach. Deputy Judge
H McMahon, as he then was, said:- H
I I
“3. I will deal firstly with the sentence imposed in respect of the
J
appellant's breach of her deportation order. J
4. It may well once have been the case that this court regarded
K the appropriate sentence after plea for the breaching of a K
deportation order to be a sentence in the vicinity of 12 months'
imprisonment or even less : see HKSAR v. Vu Thi Van Anh,
L L
HCMA289/2000; HKSAR v. Nguyen Thi Thoa,
HCMA110/1999; R. v. Hoang Dinh Huy, HCMA1530/1996;
M and HKSAR v. Cheema Asghar Sajjad, HCMA85/2000. But in M
recent years, those sentences have been substantially increased :
see HKSAR v. Luu Dinh Huy, HCMA690/1997; HKSAR v. Do
N Thi Hue, HCMA873/2001; and HKSAR v. Nguyen Chi Trung N
@ Dong Van Thanh, HCMA1095/2001.
O O
5. In the last mentioned case, Beeson J said :
P "A sentence for breach of a deportation order, P
comparable to that for a plea to unlawfully entering
and remaining, for a first charge, could properly be
Q Q
18 months' imprisonment. Given the maximum
sentence and the serious nature of the offence it
R would be difficult to fault sentences that were higher R
than 16 months."
S S
With that I agree. Indeed, that the legislature intended the
offence of breach of a deportation order to be a serious offence
T and further, a more serious offence than unlawfully remaining in T
Hong Kong is perhaps evident from the maximum penalty being
U U
V V
由此
- 6 -
A A
B one of seven years' imprisonment as compared to the maximum B
sentence of three years' imprisonment for unlawfully remaining
in Hong Kong.
C 6. That is sensible when it is remembered that the breach of a C
deportation order requires a deliberate circumvention of an
D order directed at the offender personally. In my view, a sentence D
of 18 months' imprisonment after plea for such an offence cannot
be criticised.”
E E
F F
8. The Defendant here says he has come back to Hong Kong so
G soon after his last release from prison, about 5 months after his discharge, G
because his life was threatened as he was unable to pay money to another
H H
Vietnamese who was imprisoned in Hong Kong for 10 years for drug
I I
trafficking offences as a result of his testifying against him and who had
J
recently returned to Vietnam after being released from prison. I do not J
accept that this justifies the breach of a deportation order – the Defendant
K K
knew that there was in force against him a deportation order prohibiting his
L
return to Hong Kong – he had a free choice as to where he went. L
M M
9. The maximum sentence in the District Court for illegal
N remaining is the same as in the Magistracy, namely 3 years’ imprisonment, N
whereas the sentence for breach of deportation order is 7 years’
O O
imprisonment. I am satisfied that the appropriate starting point in respect
P of the Defendant herein for the offence of illegal remaining is one of 3 P
years’ imprisonment, and that for breach of the deportation order is 3 years
Q Q
and 6 months’ imprisonment. Save for his pleas of guilty, there is little else
R of weight in mitigation before me. I am satisfied that there are no strong R
humanitarian considerations to further reduce the sentence. Giving the
S S
Defendant full credit for his pleas of guilty, the sentences are reduced to 2
T T
U U
V V
由此
- 7 -
A A
B years’ imprisonment for the offence of illegal remaining and 2 years and 4 B
months’ imprisonment for the offence of breach of deportation order.
C C
D 10. The courts have repeatedly upheld partially consecutive D
sentences for these offences. Deputy High Court Judge M. Poon, as she
E E
then was, in HKSAR v. Muhammad Kakeer, supra, said:
F F
“14. Gill DJ, in HKSAR v. Pham Ngoc Hue, HCMA874/2001
G recognized that there had been inconsistent approaches by G
courts as to whether the sentences in respect of unlawful
remaining charge should run concurrently to, or consecutively,
H H
or partially consecutively to the breach of deportation order
charge. He preferred the view taken by Jackson J in HKSAR v.
I Nguyen Van Hien, HCMA947/1998 that : I
“….the offence of remaining in Hong Kong without
J J
authority is quite plainly a single offence but if the
offender has come here in direct contravention of a
K deportation order then that is another offence and it is K
quite separate and distinct, and the learned Magistrate
was perfectly entitled to view it as such and impose
L consecutive terms of imprisonment.” L
M 15. I agree that partially consecutive sentences should be M
imposed.”
N N
11. The Court, in HKSAR v. Mohammad Shehzad, HCMA
O O
793/2007, said, at paragraph 16:
P P
“To enter Hong Kong in defiance of such an order is a separate
Q and distinct offence from illegal entry and the criminality is Q
greater. Deterrent sentences should be imposed in each case.”
R R
S 12. Considering totality of sentence, I am satisfied that an overall S
sentence of 3 ½ years’ imprisonment properly reflects the Defendant’s
T T
criminal culpability on the two charges.
U U
V V
由此
- 8 -
A A
B 13. The Defendant is sentenced as follows: B
C C
Charge 1 – 2 years’ imprisonment
D Charge 2 – 2 years’ and 4 months’ imprisonment D
E E
10 months of the sentence on charge 2 is to run concurrently with that on
F charge 1, and 1 ½ years is to run consecutively, making the total sentence F
to be served by the Defendant to be 3 ½ years’ imprisonment.
G G
H H
I I
J （ Bina Chainrai ） J
Deputy District Judge
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
由此
A A
B B
DCCC 1286/2010
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 1286 OF 2010
E E
--------------------
F HKSAR F
against
G G
PHAM Van-hung
H
-------------------- H
I I
Coram: Deputy District Judge Chainrai
J Date: 4th January 2011 J
Present: Mr. William SIU, Public Prosecutor, of the Department of
K K
Justice, for HKSAR
L Mr. TSANG Man Hing, Johnson of M/S. Tsang, Chan & Woo L
assigned by D.L.A. for the Defendant
M M
Offence: (1) Remaining in Hong Kong without the authority of the
N Director of Immigration after having landed unlawfully in N
Hong Kong
O O
(2) Breach of deportation order
P P
Q REASONS FOR SENTENCE Q
R R
1. The Defendant has been convicted on his own plea on 2
S counts on the amended indictment, namely count 1 of remaining in Hong S
Kong without the authority of the Director of Immigration after having
T T
U U
V V
由此
- 2 -
A A
B landed unlawfully in Hong Kong, contrary to Section 38(1)(b) of the B
Immigration Ordinance, Cap. 115 and count 2 of breach of deportation
C C
order, contrary to Section 43(1)(a) of the Immigration Ordinance, Cap.
D 115. D
E E
2. Facts admitted by the Defendant disclose that he is
F Vietnamese and he has no right of abode in Hong Kong. On 16 December, F
2003, a deportation order was made against the Defendant requiring him to
G G
leave Hong Kong and prohibiting him from being in Hong Kong at any
H time thereafter. He was deported to Vietnam on 15 January, 2004. At 5.05 H
p.m. on 26 October, 2010, he was intercepted in the Sham Shui Po area by
I I
a plainclothes police officer on anti-crime patrol duty for an identity card
J check and inquiry. The Defendant failed to produce any proof of identity J
and disclosed that he was an illegal immigrant who had sneaked into Hong
K K
Kong that same day. He was arrested. When interviewed under caution
L L
subsequently in the presence of a Vietnamese interpreter, he said he had
M
sneaked into Hong Kong at 8 a.m. that day by hiding beneath a truck. At M
another interview under caution on 27 October, 2010, he admitted the
N N
offences and stated he knew that he was restricted by the Court of Hong
O Kong from entering Hong Kong again. O
P P
3. In passing sentence, I have considered all that has been urged
Q upon me in mitigation by Counsel on behalf of the Defendant. He has 6 Q
previous court appearances in Hong Kong. His record dates back to 2003.
R R
He has 11 previous convictions, including 5 for illegal remaining and 4
S for breach of deportation order. His last convictions were on 25 March, S
2009, when he was sentenced to 21 months’ imprisonment for illegal
T T
remaining and 12 months’ imprisonment for breach of deportation order,
U U
V V
由此
- 3 -
A A
B to be served concurrently. He was released from prison on 26 May, 2010, B
according to his antecedent statement. He has returned to Hong Kong very
C C
shortly after being sent back to Vietnam after serving that prison term. He
D is now aged 32 years and recently divorced, with a son aged 11 years and a D
daughter aged 8 years. He has received secondary education, and is a
E E
farmer in Vietnam. He contracted AIDS in 1999. I am told that in 1998, he
F was a prosecution witness and gave evidence against a fellow Vietnamese F
who was charged with trafficking in a dangerous drug here in Hong Kong.
G G
That Vietnamese was convicted and sentenced to 10 years’ imprisonment.
H That Vietnamese was recently released from prison, and threatened the H
Defendant’s life unless the Defendant paid him money. The Defendant was
I I
unable to pay, and therefore chose to leave Vietnam and come back to
J Hong Kong. J
K K
4. I have also considered the 2 authorities handed to me by the
L L
Prosecution and the Defence, namely HKSAR v. Pham Van Tuan, HCMA
M
221/2004 by the Prosecution and HKSAR v. Muhammad Kakeer, HCMA M
843/2006 by the Defence.
N N
O 5. In determining the sentence for these offences I have to bear O
in mind that the Defendant is a repeated offender in respect of illegal
P P
entries and the breach of his Deportation Order.
Q Q
6. For offences of illegally remaining in Hong Kong, the Court
R R
of Appeal in R. v. So Man-king [1989] 1 HKLR 142 held that allowing for
S a plea of guilty, a sentence of 15 months’ imprisonment should be used as S
the basic guideline unless there are strong humanitarian considerations to
T T
warrant a departure from that guideline. The Court of Appeal further held
U U
V V
由此
- 4 -
A A
B that a court should take into account, by upward adjustment, any previous B
unlawful entry.
C C
D 7. There are no guideline sentences for offences of breach of D
deportation orders. In HKSAR v. Muhammad Kakeer, supra, Deputy
E E
High Court Judge M. Poon, as she then was, said:-
F F
G “10. In HKSAR v. Nguyen Chi Trung, HCMA1095/2001, G
Beeson J reviewed the earlier authorities saying that the
customary sentence for offence of breach of deportation order
H was 12 to 16 months’ imprisonment (HKSAR v. Do Thi Hue, H
HCMA873/2001 and HKSAR v. Vu Thi Wan Anh [2002] 2
I HKLRD 284). Declining to set down guidelines, Beeson J said : I
“29. The crux of the offence of a breach of deportation
J order does not lie solely in an offender’s illegal J
presence in Hong Kong, as is true for unlawfully
landing or remaining, or using a false identity
K K
card. The gravamen of the offence is that a convicted
person, who has no right to be in Hong Kong, and who
L has been prohibited from returning for a specified L
period, disobeys that prohibition and returns to Hong
Kong.
M M
30. A breach of a Deportation Order is a more serious
N offence than those under s.38(1)(b) of the Immigration N
Ordinance. That is indicated by the legislative
provision that enables such a breach to be dealt with on
O indictment, with a maximum sentence of 7 years. The O
sentencing range of 12 – 16 months that prevails at
P
present seems to have been reached incidentally by P
reference to, and association with, other offences under
the Immigration Ordinance. No Court of Appeal
Q guidelines or tariffs exist and cases on sentence are Q
persuasive rather than binding on this court.
R R
31. Some principles do emerge. A sentence for such
breach should be deterrent as the offence is
S serious. The charge should be recognised as aiming to S
prevent the unlawful return to, and presence in, Hong
Kong of someone who has no right to enter, nor any
T right of abode, and to punish a convicted offender who T
defies an individualised prohibition.”
U U
V V
由此
- 5 -
A A
B B
11. In that case, a sentence of 18 months’ imprisonment on a
plea was upheld.”
C C
D
The courts view such offences as more serious than offences of illegal D
remaining and have upheld starting points of 27 months’ imprisonment for
E E
a first offence of breach of deportation order (see for example HKSAR v.
F Nguyen Chi-trung, HCMA 1095/2001) as applied in HKSAR v. Cortez F
Emily Bisoy [2002] 2 HKLRD 762. Again, a court should take into
G G
account, by upward adjustment, any previous breach. Deputy Judge
H McMahon, as he then was, said:- H
I I
“3. I will deal firstly with the sentence imposed in respect of the
J
appellant's breach of her deportation order. J
4. It may well once have been the case that this court regarded
K the appropriate sentence after plea for the breaching of a K
deportation order to be a sentence in the vicinity of 12 months'
imprisonment or even less : see HKSAR v. Vu Thi Van Anh,
L L
HCMA289/2000; HKSAR v. Nguyen Thi Thoa,
HCMA110/1999; R. v. Hoang Dinh Huy, HCMA1530/1996;
M and HKSAR v. Cheema Asghar Sajjad, HCMA85/2000. But in M
recent years, those sentences have been substantially increased :
see HKSAR v. Luu Dinh Huy, HCMA690/1997; HKSAR v. Do
N Thi Hue, HCMA873/2001; and HKSAR v. Nguyen Chi Trung N
@ Dong Van Thanh, HCMA1095/2001.
O O
5. In the last mentioned case, Beeson J said :
P "A sentence for breach of a deportation order, P
comparable to that for a plea to unlawfully entering
and remaining, for a first charge, could properly be
Q Q
18 months' imprisonment. Given the maximum
sentence and the serious nature of the offence it
R would be difficult to fault sentences that were higher R
than 16 months."
S S
With that I agree. Indeed, that the legislature intended the
offence of breach of a deportation order to be a serious offence
T and further, a more serious offence than unlawfully remaining in T
Hong Kong is perhaps evident from the maximum penalty being
U U
V V
由此
- 6 -
A A
B one of seven years' imprisonment as compared to the maximum B
sentence of three years' imprisonment for unlawfully remaining
in Hong Kong.
C 6. That is sensible when it is remembered that the breach of a C
deportation order requires a deliberate circumvention of an
D order directed at the offender personally. In my view, a sentence D
of 18 months' imprisonment after plea for such an offence cannot
be criticised.”
E E
F F
8. The Defendant here says he has come back to Hong Kong so
G soon after his last release from prison, about 5 months after his discharge, G
because his life was threatened as he was unable to pay money to another
H H
Vietnamese who was imprisoned in Hong Kong for 10 years for drug
I I
trafficking offences as a result of his testifying against him and who had
J
recently returned to Vietnam after being released from prison. I do not J
accept that this justifies the breach of a deportation order – the Defendant
K K
knew that there was in force against him a deportation order prohibiting his
L
return to Hong Kong – he had a free choice as to where he went. L
M M
9. The maximum sentence in the District Court for illegal
N remaining is the same as in the Magistracy, namely 3 years’ imprisonment, N
whereas the sentence for breach of deportation order is 7 years’
O O
imprisonment. I am satisfied that the appropriate starting point in respect
P of the Defendant herein for the offence of illegal remaining is one of 3 P
years’ imprisonment, and that for breach of the deportation order is 3 years
Q Q
and 6 months’ imprisonment. Save for his pleas of guilty, there is little else
R of weight in mitigation before me. I am satisfied that there are no strong R
humanitarian considerations to further reduce the sentence. Giving the
S S
Defendant full credit for his pleas of guilty, the sentences are reduced to 2
T T
U U
V V
由此
- 7 -
A A
B years’ imprisonment for the offence of illegal remaining and 2 years and 4 B
months’ imprisonment for the offence of breach of deportation order.
C C
D 10. The courts have repeatedly upheld partially consecutive D
sentences for these offences. Deputy High Court Judge M. Poon, as she
E E
then was, in HKSAR v. Muhammad Kakeer, supra, said:
F F
“14. Gill DJ, in HKSAR v. Pham Ngoc Hue, HCMA874/2001
G recognized that there had been inconsistent approaches by G
courts as to whether the sentences in respect of unlawful
remaining charge should run concurrently to, or consecutively,
H H
or partially consecutively to the breach of deportation order
charge. He preferred the view taken by Jackson J in HKSAR v.
I Nguyen Van Hien, HCMA947/1998 that : I
“….the offence of remaining in Hong Kong without
J J
authority is quite plainly a single offence but if the
offender has come here in direct contravention of a
K deportation order then that is another offence and it is K
quite separate and distinct, and the learned Magistrate
was perfectly entitled to view it as such and impose
L consecutive terms of imprisonment.” L
M 15. I agree that partially consecutive sentences should be M
imposed.”
N N
11. The Court, in HKSAR v. Mohammad Shehzad, HCMA
O O
793/2007, said, at paragraph 16:
P P
“To enter Hong Kong in defiance of such an order is a separate
Q and distinct offence from illegal entry and the criminality is Q
greater. Deterrent sentences should be imposed in each case.”
R R
S 12. Considering totality of sentence, I am satisfied that an overall S
sentence of 3 ½ years’ imprisonment properly reflects the Defendant’s
T T
criminal culpability on the two charges.
U U
V V
由此
- 8 -
A A
B 13. The Defendant is sentenced as follows: B
C C
Charge 1 – 2 years’ imprisonment
D Charge 2 – 2 years’ and 4 months’ imprisonment D
E E
10 months of the sentence on charge 2 is to run concurrently with that on
F charge 1, and 1 ½ years is to run consecutively, making the total sentence F
to be served by the Defendant to be 3 ½ years’ imprisonment.
G G
H H
I I
J （ Bina Chainrai ） J
Deputy District Judge
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V