A A
DCCC1343/2010
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1343 OF 2010
C C
----------------------
D D
HKSAR
E v. E
Tran Van-tuan
F F
----------------------
G G
Before: H H Judge A. Wong
Date: 25 January 2011 at 9.39 am
H Present: Ms Sabra Lo, PP, of the Department of Justice, for H
HKSAR
Mr Ng Hung-sui, Kenneth, of Ng, Au Yeung & Partners,
I assigned by the Director of Legal Aid, for the I
Defendant
J Offence: (1) & (3) Possession of dutiable goods (管有應課稅貨品) J
(2) Remaining in Hong Kong without the authority of the
Director of Immigration after having landed
K unlawfully in Hong Kong (在香港非法入境後未得入境事務處 K
處長授權而留在香港)
L (4) Breach of deportation order (違反遞解離境令) L
M --------------------- M
N Reasons for Sentence N
---------------------
O O
1. The defendant was convicted upon his guilty pleas of
P P
the following charges: Charge 1, possession of dutiable goods;
Q Charge 2, remaining in Hong Kong without the authority of the Q
Director of Immigration after having landed unlawfully in Hong
R Kong, and for convenience sake, hereinafter I will call it the R
offence of unlawful remaining; the 3rd charge, possession of
S S
dutiable goods; Charge 4, breach of deportation order.
T T
2. In sentencing, I have considered the whole
U circumstances of the case, including its nature and facts, U
CRT30/25.1.2011/SY 1 DCCC1343/2010/Sentence
V V
A A
personal background of the defendant and mitigation put forward
on his behalf.
B B
C 3. Facts of the case may be summarized as follows. C
D 4. On 5 November 2010, the defendant was stopped when he D
came out from a flat in a building. In the two nylon bags he was
E E
carrying, 40,000 “duty not paid” cigarettes were found. With the
keys found on the defendant, entry was gained into a room inside
F F
the above said flat. There, 559,200 “duty not paid” cigarettes
G were found. G
H 5. At the material time the defendant was remaining in H
Hong Kong without the authority of the Director of Immigration.
I I
He came to Hong Kong in breach of a deportation order imposed on
him on 26 September 2008. By the order the defendant was
J J
required to leave Hong Kong and was prohibited from being in
K
Hong Kong at any time thereafter. Since the issue of the K
deportation order, the defendant had twice been deported to
L Hanoi, Vietnam, once on 30 October 2008 and the other on 7 May L
2010.
M M
6. Defendant is 42 years of age. He was living with his
N N
parents and siblings in Vietnam. He received education up to
Form 1 and had engaged in decoration and farming work. His wife
O O
is also a farmer. They had a daughter and a son, both teenagers
P receiving secondary school education. P
Q 7. Defendant is not a first-time offender. In October Q
2007 he was convicted of a charge of unlawful remaining and a
R R
charge of going equipped for stealing, of which he was sentenced
to a total of 18 months’ imprisonment. In March 2009 he was
S S
again convicted of the same offences and also a further offence
T of breach of deportation order. For these offences he was T
sentenced to a total of 21 months’ imprisonment.
U U
CRT30/25.1.2011/SY 2 DCCC1343/2010/Sentence
V V
A A
8. In the present case, Charge 1 and Charge 3 concern the
possession by the defendant of a large quantity of cigarettes
B B
for which duty had not been paid. The offence is one contrary to
C section 17(6) of the Dutiable Commodities Ordinance which C
obviously aims at possession of cigarettes in a trade or
D business context. It carries a maximum sentence of a fine of $1 D
million and 2 years’ imprisonment, the same as other offences
E E
created under section 17, including the offence of dealing with
dutiable commodities which more offenders are charged with.
F F
G 9. Though most sentencing precedents concern the offence G
of dealing with dutiable commodities, in my opinion, the
H sentencing considerations are generally applicable in the H
present case. The defendant must be in possession of the
I I
dutiable commodities in the course of business or trade. The
quantity of cigarettes, the value, the impact on the legitimate
J J
cigarette traders and the duty avoided are all relevant factors.
K K
10. Though only the quantity of the cigarettes was
L expressly mentioned in the facts admitted by the defendant, in L
view of the large quantity it defies common sense that the
M impact on the traders and the duty avoided were not substantial. M
N N
11. Having regard to cases such as HKSAR v Mok Chun Wing,
HCMA727/2000, HKSAR v Ma Wai Fui, HCMA1123/2003, and HKSAR v Sze
O O
Man Ngai, HCMA821/2004, I am of the view that an immediate
P imprisonment term is called for in relation to each of these two P
offences.
Q Q
12. In the light of the quantity involved, it must be a
R R
wholesale operation. Defendant must be playing a substantial
role in the operation. In my judgment, the following starting
S S
points are appropriate: Charge 1, 9 months; Charge 3, 15 months.
T T
13. Charge 4 is the offence of breach of deportation
U order. I have had regard to the following sentencing precedents. U
CRT30/25.1.2011/SY 3 DCCC1343/2010/Sentence
V V
A A
14. In HKSAR v Nguyen Chi Trung @ Dong Van Thanh,
B B
HCMA1095/2001, Beeson J said:
C “This offence is a more serious offence than that of C
unlawful remaining. Obviously, the offence of breach
of deportation order carries a higher maximum sentence
D of 7 years.” D
15. Her Ladyship also said:
E E
“The crux of the offence of a breach of deportation
order does not lie solely in an offender’s illegal
F presence in Hong Kong, as is true for unlawful landing F
or remaining, or using a false identity card. The
G gravamen of the offence is that a convicted person, who G
has no right to be in Hong Kong, and who has been
prohibited from returning for a specified period,
H disobeys that prohibition and returns to Hong Kong.” H
I 16. Her Ladyship further said: I
“A sentence for such breach should be deterrent as the
J offence is serous. The charge should be recognized as J
aiming to prevent the unlawful return to, and presence
in, Hong Kong of someone who has no right to enter, nor
K any right of abode, and to punish a convicted offender K
who defies an individualized prohibition. Those aims
justify a sentence after plea being higher than the 15
L L
months after plea, decided on in So Man King. A
sentence for breach of a deportation order, comparable
M to that for a plea to unlawful entering and remaining, M
for a first charge, could properly be 18 months’
imprisonment.”
N N
17. In HKSAR v Cortez Emily Bisoy, HCMA457/2002, Deputy
O O
Judge McMahon, as he then was, expressed his agreement to the
view and added that the legislature intended the offence of
P P
breach of a deportation order to be a serious offence and,
Q further, a more serious offence than unlawful remaining. He said Q
that a sentence of 18 months’ imprisonment after plea for such
R an offence cannot be criticized since it is a deliberate R
circumvention of an order directed at the offender personally.
S S
18. In HKSAR v Gabriel Malou Lantin, HCMA716/2004, Beeson
T T
J said that the authorities indicate that for a first offence of
U breach of a deportation order, a starting point of 27 months U
would be appropriate. In this case her Ladyship upheld a
CRT30/25.1.2011/SY 4 DCCC1343/2010/Sentence
V V
A A
starting point of 30 months imposed on the appellant who had one
previous similar record.
B B
C 19. Whilst these decisions are not binding on me, I C
respectfully agree to the reasoning of the learned judges. I
D adopt a starting point of 30 months for Charge 4. D
E E
20. The defendant pleaded guilty, he is entitled to a one-
third discount. Having considered the whole of the relevant
F F
circumstances, I am of the view that this is the extent of
G discount the defendant is entitled to in this case. Accordingly, G
I sentence the defendant to the following sentences: Charge 1, 6
H months; Charge 3, 10 months; Charge 4, 20 months. H
I I
21. For Charge 2, the offence of unlawful remaining, there
is no reason not to follow the tariff. It was held by the Court
J J
of Appeal in R v So Man King [1989] 1 HKLR 142 that a sentence
K
of 15 months’ imprisonment should be imposed after plea. In that K
case Mr Justice Cons, Acting Chief Justice, said that the court
L should take into account by upward adjustment any previous L
unlawful entry, whether resulting in prosecution or not, and
M other circumstances which may aggravate the offence. M
N N
22. In my judgment, a sentence of 18 months’ imprisonment
is appropriate for Charge 2, taking into account the guilty
O O
plea.
P P
23. In HKSAR v Nguyen Tuan Anh, HCMA1091/2003, Madam
Q Beeson J upheld a partly consecutive sentence for the offences Q
of unlawful remaining and breach of deportation order. It had
R R
been said that the sentences imposed should distinguish between
those who had merely entered Hong Kong lawfully and those who
S S
positively disobeyed an injunction not to return to Hong Kong
T and that if concurrent sentences are passed, the service of T
deportation orders is rendered an empty exercise and the
U intention of legislature and executive rendered nugatory. U
CRT30/25.1.2011/SY 5 DCCC1343/2010/Sentence
V V
A A
24. In my judgment, as a matter of principle, the
sentences imposed on Charge 2 and Charge 4 should be partly
B B
consecutive and an aggregate sentence for these two charges
C should be 24 months. To give effect to this, I order 4 months C
imposed on Charge 2 to run consecutively to those imposed on
D Charge 4. D
E E
25. There is also a line of authorities such as HKSAR v
Tong Fuk Sing, CACC216/1999, HKSAR v Bagtas Alicia Cawivel,
F F
HCMA195/1998 and HKSAR v Gabriel Malou Lantin which endorse the
G approach that if on top of the immigration offence, the offender G
committed offence of other nature, a consecutive sentence should
H be imposed. H
I I
26. I am also of the view that the aggregate sentence of
Charge 2 and Charge 4 should be consecutive to the sentences
J J
imposed on the other two charges, subject to totality.
K K
27. Having considered the whole circumstances, I order the
L sentences imposed on Charge 1 and Charge 3 to run concurrently, L
but with 6 months of the aggregate to run consecutively to the
M aggregate sentence imposed on Charge 2 and Charge 4. For the M
four offences, defendant is to serve a total sentence of 30
N N
months’ imprisonment.
O O
P P
(A. Wong)
Q District Judge Q
R R
S S
T T
U U
CRT30/25.1.2011/SY 6 DCCC1343/2010/Sentence
V V
A A
DCCC1343/2010
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1343 OF 2010
C C
----------------------
D D
HKSAR
E v. E
Tran Van-tuan
F F
----------------------
G G
Before: H H Judge A. Wong
Date: 25 January 2011 at 9.39 am
H Present: Ms Sabra Lo, PP, of the Department of Justice, for H
HKSAR
Mr Ng Hung-sui, Kenneth, of Ng, Au Yeung & Partners,
I assigned by the Director of Legal Aid, for the I
Defendant
J Offence: (1) & (3) Possession of dutiable goods (管有應課稅貨品) J
(2) Remaining in Hong Kong without the authority of the
Director of Immigration after having landed
K unlawfully in Hong Kong (在香港非法入境後未得入境事務處 K
處長授權而留在香港)
L (4) Breach of deportation order (違反遞解離境令) L
M --------------------- M
N Reasons for Sentence N
---------------------
O O
1. The defendant was convicted upon his guilty pleas of
P P
the following charges: Charge 1, possession of dutiable goods;
Q Charge 2, remaining in Hong Kong without the authority of the Q
Director of Immigration after having landed unlawfully in Hong
R Kong, and for convenience sake, hereinafter I will call it the R
offence of unlawful remaining; the 3rd charge, possession of
S S
dutiable goods; Charge 4, breach of deportation order.
T T
2. In sentencing, I have considered the whole
U circumstances of the case, including its nature and facts, U
CRT30/25.1.2011/SY 1 DCCC1343/2010/Sentence
V V
A A
personal background of the defendant and mitigation put forward
on his behalf.
B B
C 3. Facts of the case may be summarized as follows. C
D 4. On 5 November 2010, the defendant was stopped when he D
came out from a flat in a building. In the two nylon bags he was
E E
carrying, 40,000 “duty not paid” cigarettes were found. With the
keys found on the defendant, entry was gained into a room inside
F F
the above said flat. There, 559,200 “duty not paid” cigarettes
G were found. G
H 5. At the material time the defendant was remaining in H
Hong Kong without the authority of the Director of Immigration.
I I
He came to Hong Kong in breach of a deportation order imposed on
him on 26 September 2008. By the order the defendant was
J J
required to leave Hong Kong and was prohibited from being in
K
Hong Kong at any time thereafter. Since the issue of the K
deportation order, the defendant had twice been deported to
L Hanoi, Vietnam, once on 30 October 2008 and the other on 7 May L
2010.
M M
6. Defendant is 42 years of age. He was living with his
N N
parents and siblings in Vietnam. He received education up to
Form 1 and had engaged in decoration and farming work. His wife
O O
is also a farmer. They had a daughter and a son, both teenagers
P receiving secondary school education. P
Q 7. Defendant is not a first-time offender. In October Q
2007 he was convicted of a charge of unlawful remaining and a
R R
charge of going equipped for stealing, of which he was sentenced
to a total of 18 months’ imprisonment. In March 2009 he was
S S
again convicted of the same offences and also a further offence
T of breach of deportation order. For these offences he was T
sentenced to a total of 21 months’ imprisonment.
U U
CRT30/25.1.2011/SY 2 DCCC1343/2010/Sentence
V V
A A
8. In the present case, Charge 1 and Charge 3 concern the
possession by the defendant of a large quantity of cigarettes
B B
for which duty had not been paid. The offence is one contrary to
C section 17(6) of the Dutiable Commodities Ordinance which C
obviously aims at possession of cigarettes in a trade or
D business context. It carries a maximum sentence of a fine of $1 D
million and 2 years’ imprisonment, the same as other offences
E E
created under section 17, including the offence of dealing with
dutiable commodities which more offenders are charged with.
F F
G 9. Though most sentencing precedents concern the offence G
of dealing with dutiable commodities, in my opinion, the
H sentencing considerations are generally applicable in the H
present case. The defendant must be in possession of the
I I
dutiable commodities in the course of business or trade. The
quantity of cigarettes, the value, the impact on the legitimate
J J
cigarette traders and the duty avoided are all relevant factors.
K K
10. Though only the quantity of the cigarettes was
L expressly mentioned in the facts admitted by the defendant, in L
view of the large quantity it defies common sense that the
M impact on the traders and the duty avoided were not substantial. M
N N
11. Having regard to cases such as HKSAR v Mok Chun Wing,
HCMA727/2000, HKSAR v Ma Wai Fui, HCMA1123/2003, and HKSAR v Sze
O O
Man Ngai, HCMA821/2004, I am of the view that an immediate
P imprisonment term is called for in relation to each of these two P
offences.
Q Q
12. In the light of the quantity involved, it must be a
R R
wholesale operation. Defendant must be playing a substantial
role in the operation. In my judgment, the following starting
S S
points are appropriate: Charge 1, 9 months; Charge 3, 15 months.
T T
13. Charge 4 is the offence of breach of deportation
U order. I have had regard to the following sentencing precedents. U
CRT30/25.1.2011/SY 3 DCCC1343/2010/Sentence
V V
A A
14. In HKSAR v Nguyen Chi Trung @ Dong Van Thanh,
B B
HCMA1095/2001, Beeson J said:
C “This offence is a more serious offence than that of C
unlawful remaining. Obviously, the offence of breach
of deportation order carries a higher maximum sentence
D of 7 years.” D
15. Her Ladyship also said:
E E
“The crux of the offence of a breach of deportation
order does not lie solely in an offender’s illegal
F presence in Hong Kong, as is true for unlawful landing F
or remaining, or using a false identity card. The
G gravamen of the offence is that a convicted person, who G
has no right to be in Hong Kong, and who has been
prohibited from returning for a specified period,
H disobeys that prohibition and returns to Hong Kong.” H
I 16. Her Ladyship further said: I
“A sentence for such breach should be deterrent as the
J offence is serous. The charge should be recognized as J
aiming to prevent the unlawful return to, and presence
in, Hong Kong of someone who has no right to enter, nor
K any right of abode, and to punish a convicted offender K
who defies an individualized prohibition. Those aims
justify a sentence after plea being higher than the 15
L L
months after plea, decided on in So Man King. A
sentence for breach of a deportation order, comparable
M to that for a plea to unlawful entering and remaining, M
for a first charge, could properly be 18 months’
imprisonment.”
N N
17. In HKSAR v Cortez Emily Bisoy, HCMA457/2002, Deputy
O O
Judge McMahon, as he then was, expressed his agreement to the
view and added that the legislature intended the offence of
P P
breach of a deportation order to be a serious offence and,
Q further, a more serious offence than unlawful remaining. He said Q
that a sentence of 18 months’ imprisonment after plea for such
R an offence cannot be criticized since it is a deliberate R
circumvention of an order directed at the offender personally.
S S
18. In HKSAR v Gabriel Malou Lantin, HCMA716/2004, Beeson
T T
J said that the authorities indicate that for a first offence of
U breach of a deportation order, a starting point of 27 months U
would be appropriate. In this case her Ladyship upheld a
CRT30/25.1.2011/SY 4 DCCC1343/2010/Sentence
V V
A A
starting point of 30 months imposed on the appellant who had one
previous similar record.
B B
C 19. Whilst these decisions are not binding on me, I C
respectfully agree to the reasoning of the learned judges. I
D adopt a starting point of 30 months for Charge 4. D
E E
20. The defendant pleaded guilty, he is entitled to a one-
third discount. Having considered the whole of the relevant
F F
circumstances, I am of the view that this is the extent of
G discount the defendant is entitled to in this case. Accordingly, G
I sentence the defendant to the following sentences: Charge 1, 6
H months; Charge 3, 10 months; Charge 4, 20 months. H
I I
21. For Charge 2, the offence of unlawful remaining, there
is no reason not to follow the tariff. It was held by the Court
J J
of Appeal in R v So Man King [1989] 1 HKLR 142 that a sentence
K
of 15 months’ imprisonment should be imposed after plea. In that K
case Mr Justice Cons, Acting Chief Justice, said that the court
L should take into account by upward adjustment any previous L
unlawful entry, whether resulting in prosecution or not, and
M other circumstances which may aggravate the offence. M
N N
22. In my judgment, a sentence of 18 months’ imprisonment
is appropriate for Charge 2, taking into account the guilty
O O
plea.
P P
23. In HKSAR v Nguyen Tuan Anh, HCMA1091/2003, Madam
Q Beeson J upheld a partly consecutive sentence for the offences Q
of unlawful remaining and breach of deportation order. It had
R R
been said that the sentences imposed should distinguish between
those who had merely entered Hong Kong lawfully and those who
S S
positively disobeyed an injunction not to return to Hong Kong
T and that if concurrent sentences are passed, the service of T
deportation orders is rendered an empty exercise and the
U intention of legislature and executive rendered nugatory. U
CRT30/25.1.2011/SY 5 DCCC1343/2010/Sentence
V V
A A
24. In my judgment, as a matter of principle, the
sentences imposed on Charge 2 and Charge 4 should be partly
B B
consecutive and an aggregate sentence for these two charges
C should be 24 months. To give effect to this, I order 4 months C
imposed on Charge 2 to run consecutively to those imposed on
D Charge 4. D
E E
25. There is also a line of authorities such as HKSAR v
Tong Fuk Sing, CACC216/1999, HKSAR v Bagtas Alicia Cawivel,
F F
HCMA195/1998 and HKSAR v Gabriel Malou Lantin which endorse the
G approach that if on top of the immigration offence, the offender G
committed offence of other nature, a consecutive sentence should
H be imposed. H
I I
26. I am also of the view that the aggregate sentence of
Charge 2 and Charge 4 should be consecutive to the sentences
J J
imposed on the other two charges, subject to totality.
K K
27. Having considered the whole circumstances, I order the
L sentences imposed on Charge 1 and Charge 3 to run concurrently, L
but with 6 months of the aggregate to run consecutively to the
M aggregate sentence imposed on Charge 2 and Charge 4. For the M
four offences, defendant is to serve a total sentence of 30
N N
months’ imprisonment.
O O
P P
(A. Wong)
Q District Judge Q
R R
S S
T T
U U
CRT30/25.1.2011/SY 6 DCCC1343/2010/Sentence
V V