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B DCCC 401/2012 B
IN THE DISTRICT COURT OF THE
C C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO 401 OF 2012 D
____________________
E E
BETWEEN
F HKSAR F
v
G G
MAC Nhu-ky
H ____________________ H
Before: Deputy District Judge K.H. Cheang
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Date: 15 June 2012 at 11:30 am
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Present: Mr Alvin Chiu, Public Prosecutor of the
Department of Justice, for HKSAR K
K
Ms Cheng Mi Kuen May, of Messrs May Cheng
L L
& Co, instructed by the Legal Aid Department,
for the defendant M
M
Offences: (1) Remaining in Hong Kong without the
N N
authority of the Director of Immigration after
O having landed unlawfully in Hong Kong (在香港 O
非法入境後未得入境事務處處長授權而留在香
P P
港)
Q Q
(2) Breach of deportation order (違反遞解離
R 境令) R
____________________
S S
Reasons for Sentence
T ____________________ T
Introduction
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B 1. The defendant is convicted upon his own plea of the following two B
charges:
C C
D (i) “Remaining in Hong Kong without the authority of the D
Director of Immigration after having landed unlawfully in
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Hong Kong”, contrary to section 38(1)(b) of the Immigration
F Ordinance, Cap.115; and F
(ii) “Breach of deportation order”, contrary to section 43(1)(a) of
G G
the Immigration Ordinance, Cap.115.
H H
Facts
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2. At about 6:20 pm on 28 March 2012, PC2449 intercepted the
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defendant on Tung Chau Street, Kowloon. No document of identification
was found from the defendant who told PC2449 that he was an illegal K
K
entrant and he had entered Hong Kong from the Mainland by car on 21
L L
March 2012. PC2449 therefore arrested the defendant for remaining in
Hong Kong without the authority of the Director of Immigration after M
M
having landed unlawfully in Hong Kong.
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O
3. The immigration record of the defendant revealed that the defendant O
was in breach of a deportation order dated 1 December 2004 imposed on
P P
him whereby he was required to leave Hong Kong and prohibited from
Q being in Hong Kong at any time thereafter. Q
R R
4. At a subsequent cautioned interview, the defendant admitted inter
S alia that: S
T T
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B (i) he came from Vietnam to the Mainland by car on 19 March B
2012;
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(ii) having arrived in the Mainland on 21 March 2012, he came to
D Hong Kong by car and arrived in Hong Kong on the evening D
of 21 March 2012; and
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(iii) he knew a deportation order had been imposed on him and he
F was not allowed to enter Hong Kong; but he came to Hong F
Kong because he was ill and poor.
G G
H The defendant’s previous criminal conviction record and antecedents H
5. The defendant has 11 previous convictions, out of which there were
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4 previous convictions of unlawful remaining respectively sentenced in
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2003, 2005, 2007 and 2009, and 3 previous convictions of breach of
deportation order respectively sentenced in 2005, 2007 and 2009. K
K
L L
6. The defendant was born in Vietnam in February 1981 and is now 31
years old. He was last discharged from prison in Hong Kong in February M
M
2011. He is single. He is suffering from AIDS. He used to be a fisherman.
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O
Mitigation O
7. In mitigation, Ms Cheng asked for leniency from this court. Ms
P P
Cheng submitted that the defendant’s 54-year-old mother was sick in
Q Vietnam and that the defendant also had AIDS. Ms Cheng asked this court Q
to impose concurrent sentence for the present two charges.
R R
S Sentencing authorities S
8. The maximum term of imprisonment for an offence under section
T T
38(1)(b) of the Immigration Ordinance is 3 years.
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9. In R v So Man King and others [1989] 1 HKLR 142, it was held that
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a sentence of 15 months’ imprisonment should be used as the basic
D guideline in cases of unlawful remaining, that the guideline of 15 months’ D
imprisonment allowed for a plea of guilty, and that the court should take
E E
into account, by upward adjustment, any previous unlawful entry, whether
F resulting in prosecution or not, and other circumstances which may F
aggravate the offence.
G G
H 10. In HKSAR v Hau Hoi Tung CACC 39/2002, the Court of Appeal held H
that a sentence of 18 months’ imprisonment would have been justified for a
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plea of guilty to a second offence of unlawful remaining and, for a third
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offence, there could have been no legitimate complaint to a sentence of 21
months’ imprisonment where a plea of guilty had been entered. K
K
L L
11. Prosecuting counsel referred me to HKSAR v Pham Van Hung CACC
14/2011. In HKSAR v Tran Viet Thanh CACC 54/2011, the Court of Appeal M
M
dealt with sentencing on various immigration offences and discussed Pham
N N
Van Hung and other sentencing authorities on immigration offences,
O
including HKSAR v Pham Van Tuan CACC 272/2010 and HKSAR v Cortez O
Emily Bisoy [2002] 2 HKLRD 762.
P P
Q Sentence Q
12. Having considered the facts of this case, including the fact that this is
R R
the defendant’s 5th conviction of unlawful remaining and 4th conviction of
S breach of deportation order, the mitigation advanced by the defendant’s S
legal representative and the sentencing authorities (including Hau Hoi Tung
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for the unlawful remaining charge), I am minded to adopt a starting point of
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B 31½ months’ imprisonment for the 1st charge (unlawful remaining) and a B
starting point of 36 months’ imprisonment for the 2nd charge (breach of
C C
deportation order).
D D
13. One-third discount is given to the defendant for his guilty plea, thus
E E
reducing the sentence for the 1st charge to 21 months’ imprisonment and
F that for the 2nd charge to 24 months’ imprisonment. F
G G
14. I have full sympathy to the health condition of the defendant’s
H mother but that is not a valid mitigating factor. The fact that the defendant H
has AIDS is not a mitigating factor either. In this connection, the Court of
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Appeal in R v Chau Kui-sheung [1996] 3 HKC 279 said inter alia that the
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fact that an offender was HIV positive, or had a reduced life expectancy,
was not generally a reason which should affect sentence. K
K
L L
15. There being no other valid mitigating features justifying any further
reduction in sentence, the respective sentences for the 1st and the 2nd M
M
charges are 21 months’ and 24 months’ imprisonment.
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O
16. Having considered the totality principle, I order that 4 months of the O
nd
sentence in the 2 charge are to be served consecutively to the 21 months
P P
in the 1st charge, thus making a total of 25 months’ imprisonment.
Q Q
R R
KH Cheang
Deputy District Judge
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