DCCC216/2012 HKSAR v. BUI VAN KHAI AND ANOTHER - LawHero
DCCC216/2012
HKSAR v. BUI VAN KHAI AND ANOTHER
區域法院（刑事）H H Judge Geiser18/4/2012
DCCC216/2012
A A
DCCC216/2012
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO. 216 OF 2012 C
D
---------------------- D
HKSAR
E E
v.
F Bui Van Khai (D1) F
Dang Trung Doan (D2)
G G
----------------------
H Before: H H Judge Geiser H
Date: 19 April 2012 at 3.47 pm
Present: Ms Lisa Go, PP, of the Department of Justice, for
I HKSAR I
Ms Tam Chi-ling, of Elaine Tam & Co., assigned by the
J Director of Legal Aid, for both Defendants J
Offence: (1)&(3) Remaining in Hong Kong without the authority
of the Director of Immigration after having
K landed unlawfully in Hong Kong K
(在香港非法入境後未得入境事務處處長授權而留在香港)
L
(2)&(4) Breach of deportation order L
(違反遞解離境令)
M M
---------------------
N N
Reasons for Sentence
O --------------------- O
P 1. D1 and D2, you two have been convicted on your own P
pleas of guilty to two charges which you both separately face,
Q Q
those being offences of remaining in Hong Kong without the
authority of the Director of Immigration after having landed
R R
here unlawfully, contrary to section 38(1)B of the Immigration
S Ordinance, Cap. 115, Rules of Hong Kong, and breach of a S
deportation order, contrary to section 43(1)A of the Immigration
T Ordinance, Cap. 115, Laws of Hong Kong. Charges 1 and 2 relate T
to you, D1, and Charges 3 and 4 to you, D2.
U U
CRT24/19.4.2012/NB 1 DCCC216/2012/Sentence
V V
A A
2. The Summary of Facts, which you have both agreed,
established that you were both intercepted on 5 February of this
B B
year by police officers in the vicinity of Yen Chow Street, Sham
C Shui Po. You were both searched and neither of you were in C
possession of any identity documents, and you both told the
D officers that you had entered Hong Kong illegally from Vietnam D
the day before.
E E
3. Upon further enquiries it was established that you,
F F
D1, were in breach of a deportation order made in January 2009,
G and you, D2, in breach of a deportation order made in December G
of 2007. When you were both interviewed by the police under
H caution you told them that you were both aware that deportation H
orders had been made against you and that you were prohibited
I I
from entering Hong Kong, but that you had come here in order to
seek medical treatment. Indeed in your case, D2, you even told
J J
the police that you entered Hong Kong illegally as you knew you
K
could seek medical treatment whilst in prison. K
L 4. I have dealt with cases similar to this very recently, L
and it seems to me to be a worrying trend that persons such as
M yourselves are coming to Hong Kong deliberately in the full M
knowledge that you will be caught and sent to prison, where you
N N
will achieve precisely what you want, that being free medical
treatment. I have already expressed my concerns over this to
O O
counsel for the prosecution, who, I trust, will bring my
P concerns to the relevant personnel in the Department of Justice. P
Q 5. Both of you are repeat offenders. In your case, D1, Q
you have two previous convictions for illegally remaining in
R R
Hong Kong and one for breach of a deportation order, whilst D2,
you have three previous convictions for illegally remaining and
S S
two for breach of a deportation order.
T T
6. In your case, D1, you are in breach of a suspended
U sentence imposed on you in July of 2011 for offences identical U
CRT24/19.4.2012/NB 2 DCCC216/2012/Sentence
V V
A A
to the ones that you face today. Noting of any moment has been
put before me by way of mitigation, save for your respective
B B
pleas of guilty. And I will give you both due credit for that.
C C
7. In HKSAR v Pham Van Tuan [2009] HKCU 776 and
D HCMA282/2009, the starting point of 36 months’ imprisonment in D
relation to breach of a deportation order was said to be “in
E E
line with authorities”. Accordingly, I sentence you both as
follows:-
F F
G 8. With regard to you, D1, you are sentenced to 18 G
months’ imprisonment on Charge 1. This sentence already takes
H account of your plea of guilty. On Charge 2 I adopt a starting H
point of 3 years’ imprisonment, but due to your plea of guilty I
I I
shall reduce that by one-third, coming to 2 years' imprisonment
on Charge 2. Due to the question of totality of sentence, I
J J
order 18 months of this sentence to run consecutively to the
K
sentence on Charge 1, arriving at 3 years’ imprisonment. K
L 9. In addition, I activate the suspended sentence of 18 L
months’ imprisonment imposed on you in July of 2011. But once
M again, due to the question of totality of sentence, I will order M
that 9 months of this 18 months be ordered to run consecutively
N N
to the sentence on Charge 1, arriving at a total sentence, in
your case, of 3 years and 9 months’ imprisonment in all.
O O
P 10. With respect to you, D2, you are sentenced to 18 P
months’ imprisonment in respect of Charge 3. Once again this
Q sentence already takes account of your plea of guilty. On Charge Q
4 I adopt a starting point of 3 years’ imprisonment, but will
R R
reduce this by one-third to take account of your plea of guilty,
coming to 2 years’ imprisonment on Charge 4. Due to the question
S S
of totality of sentence, once again I order 18 months of this
T sentence to run consecutively to the sentence on Charge 3, T
U U
CRT24/19.4.2012/NB 3 DCCC216/2012/Sentence
V V
A A
arriving at a total sentence in your case of 3 years’
imprisonment.
B B
C C
D
H H Judge Geiser D
District Judge
E E
F F
G G
H H
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
CRT24/19.4.2012/NB 4 DCCC216/2012/Sentence
V V
A A
DCCC216/2012
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO. 216 OF 2012 C
D
---------------------- D
HKSAR
E E
v.
F Bui Van Khai (D1) F
Dang Trung Doan (D2)
G G
----------------------
H Before: H H Judge Geiser H
Date: 19 April 2012 at 3.47 pm
Present: Ms Lisa Go, PP, of the Department of Justice, for
I HKSAR I
Ms Tam Chi-ling, of Elaine Tam & Co., assigned by the
J Director of Legal Aid, for both Defendants J
Offence: (1)&(3) Remaining in Hong Kong without the authority
of the Director of Immigration after having
K landed unlawfully in Hong Kong K
(在香港非法入境後未得入境事務處處長授權而留在香港)
L
(2)&(4) Breach of deportation order L
(違反遞解離境令)
M M
---------------------
N N
Reasons for Sentence
O --------------------- O
P 1. D1 and D2, you two have been convicted on your own P
pleas of guilty to two charges which you both separately face,
Q Q
those being offences of remaining in Hong Kong without the
authority of the Director of Immigration after having landed
R R
here unlawfully, contrary to section 38(1)B of the Immigration
S Ordinance, Cap. 115, Rules of Hong Kong, and breach of a S
deportation order, contrary to section 43(1)A of the Immigration
T Ordinance, Cap. 115, Laws of Hong Kong. Charges 1 and 2 relate T
to you, D1, and Charges 3 and 4 to you, D2.
U U
CRT24/19.4.2012/NB 1 DCCC216/2012/Sentence
V V
A A
2. The Summary of Facts, which you have both agreed,
established that you were both intercepted on 5 February of this
B B
year by police officers in the vicinity of Yen Chow Street, Sham
C Shui Po. You were both searched and neither of you were in C
possession of any identity documents, and you both told the
D officers that you had entered Hong Kong illegally from Vietnam D
the day before.
E E
3. Upon further enquiries it was established that you,
F F
D1, were in breach of a deportation order made in January 2009,
G and you, D2, in breach of a deportation order made in December G
of 2007. When you were both interviewed by the police under
H caution you told them that you were both aware that deportation H
orders had been made against you and that you were prohibited
I I
from entering Hong Kong, but that you had come here in order to
seek medical treatment. Indeed in your case, D2, you even told
J J
the police that you entered Hong Kong illegally as you knew you
K
could seek medical treatment whilst in prison. K
L 4. I have dealt with cases similar to this very recently, L
and it seems to me to be a worrying trend that persons such as
M yourselves are coming to Hong Kong deliberately in the full M
knowledge that you will be caught and sent to prison, where you
N N
will achieve precisely what you want, that being free medical
treatment. I have already expressed my concerns over this to
O O
counsel for the prosecution, who, I trust, will bring my
P concerns to the relevant personnel in the Department of Justice. P
Q 5. Both of you are repeat offenders. In your case, D1, Q
you have two previous convictions for illegally remaining in
R R
Hong Kong and one for breach of a deportation order, whilst D2,
you have three previous convictions for illegally remaining and
S S
two for breach of a deportation order.
T T
6. In your case, D1, you are in breach of a suspended
U sentence imposed on you in July of 2011 for offences identical U
CRT24/19.4.2012/NB 2 DCCC216/2012/Sentence
V V
A A
to the ones that you face today. Noting of any moment has been
put before me by way of mitigation, save for your respective
B B
pleas of guilty. And I will give you both due credit for that.
C C
7. In HKSAR v Pham Van Tuan [2009] HKCU 776 and
D HCMA282/2009, the starting point of 36 months’ imprisonment in D
relation to breach of a deportation order was said to be “in
E E
line with authorities”. Accordingly, I sentence you both as
follows:-
F F
G 8. With regard to you, D1, you are sentenced to 18 G
months’ imprisonment on Charge 1. This sentence already takes
H account of your plea of guilty. On Charge 2 I adopt a starting H
point of 3 years’ imprisonment, but due to your plea of guilty I
I I
shall reduce that by one-third, coming to 2 years' imprisonment
on Charge 2. Due to the question of totality of sentence, I
J J
order 18 months of this sentence to run consecutively to the
K
sentence on Charge 1, arriving at 3 years’ imprisonment. K
L 9. In addition, I activate the suspended sentence of 18 L
months’ imprisonment imposed on you in July of 2011. But once
M again, due to the question of totality of sentence, I will order M
that 9 months of this 18 months be ordered to run consecutively
N N
to the sentence on Charge 1, arriving at a total sentence, in
your case, of 3 years and 9 months’ imprisonment in all.
O O
P 10. With respect to you, D2, you are sentenced to 18 P
months’ imprisonment in respect of Charge 3. Once again this
Q sentence already takes account of your plea of guilty. On Charge Q
4 I adopt a starting point of 3 years’ imprisonment, but will
R R
reduce this by one-third to take account of your plea of guilty,
coming to 2 years’ imprisonment on Charge 4. Due to the question
S S
of totality of sentence, once again I order 18 months of this
T sentence to run consecutively to the sentence on Charge 3, T
U U
CRT24/19.4.2012/NB 3 DCCC216/2012/Sentence
V V
A A
arriving at a total sentence in your case of 3 years’
imprisonment.
B B
C C
D
H H Judge Geiser D
District Judge
E E
F F
G G
H H
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
CRT24/19.4.2012/NB 4 DCCC216/2012/Sentence
V V