A A
DCCC553/2012
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 553 OF 2012
C C
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D D
HKSAR
E v. E
Le Van Thanh
F also known as F
Lai Man-kwai
G G
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H Before: Deputy District Judge H.F. Woo H
Date: 31 July 2012 at 12.37 pm
Present: Mr Alvin Chui, PP, of the Department of Justice, for
I HKSAR I
Mr Jackson Lipkin H T Gabriel Leung, of T C Lau & Co.,
J for the Defendant J
Offence: (1) Remaining in Hong Kong without the authority of
the Director of Immigration after having landed
K 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) Breach of deportation order (違反遞解離境令) L
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M M
Reasons for Sentence
N N
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O The Charges O
P 1. The defendant pleaded guilty to a charge of remaining P
in Hong Kong without the authority of the Director of
Q Q
Immigration after having landed unlawfully in Hong Kong. Such
offence is contrary to section 38(1)(b) of the Immigration
R R
Ordinance, Cap.115, and a charge of breach of deportation order.
S Such offence is contrary to section 43(1)(a) of the Immigration S
Ordinance, Cap.115.
T T
The Facts
U U
2. The facts of the case can be summarised as follows.
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A A
3. About 1.20 pm on 27 May 2012, PC 34209 (PW1) spotted
B B
the defendant acting furtively, and therefore, intercepted him
C for enquiry at the Jade Market of Tung Chau Street Park, Sham C
Shui Po, Kowloon.
D D
4. The defendant then produced his Vietnamese passport to
E E
PW1, where there was no arrival chop of the Director of
Immigration of Hong Kong.
F F
G 5. Upon enquiry, the defendant claimed: G
H (1) that he had sneaked into Hong Kong two days ago by H
hiding underneath a truck;
I I
(2) that he wanted to obtain medical treatment in Hong
J J
Kong, as he had contracted AIDS and tuberculosis;
K
and K
L (3) that he knew that was subjected to a deportation L
order and was prohibited from entering Hong Kong.
M M
6. A fingerprint check also confirmed that the defendant
N N
was subjected to a Deportation Order No. IMM/CR56/93, which was
issued on 23 February 1993.
O O
P Background of the defendant and mitigation P
Q 7. The defendant, aged 48, is a Vietnamese. Before his Q
present arrest on 27 May 2012, he was living alone under Tung
R R
Chau Street bridge in Hong Kong. The defendant claimed that he
sneaked into Hong Kong two days ago for medical reasons.
S S
T 8. The defendant has had his first criminal conviction as T
early as in 1990. There were altogether 13 previous convictions
U U
CRT38/31.7.2012/ML 2 DCCC553/2012/Sentence
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A A
in all these years, relating to some 29 serious offences,
including trafficking in dangerous drugs and wounding.
B B
C 9. He had been in and out of prison for numerous C
occasions upon terms ranging from 2 months to 30 months.
D D
10. He was last released from prison and deported to
E E
Vietnam in April 2011. About a year’s time, he returned and
committed the offences in the present case.
F F
G 11. This is the sixth time he came to Hong Kong illegally, G
and the seventh time he was in breach of the deportation order.
H He is undoubtedly a recidivist - a repeat offender. H
I I
Guidelines in sentencing
J J
(1) Illegal remaining charge
K K
12. For the unlawful remaining offence, a standard
L sentence of 15 months imprisonment for a guilty plea is proper L
for a first offender with no aggravating circumstances (see R v
M So Man King [1989] 1 HKLR 142). M
N N
13. The court should take into account by upward
adjustment any previous unlawful entry, whether resulting in
O O
prosecution or not, and also other circumstances which may
P aggravate the offence (see CACC 54/2011, CACC 221/2011 and HCMA P
360/2011).
Q Q
(2) Breach of deportation order charge
R R
14. A breach of deportation order had been reckoned by the
S S
courts of Hong Kong to be a more serious offence than that of
T the illegal remaining. T
U U
CRT38/31.7.2012/ML 3 DCCC553/2012/Sentence
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A A
15. The Court of Appeal considered a sentence of
18 months imprisonment upon plea for a first-time breach of
B B
deportation order was appropriate, and a sentence of 21 months
C imprisonment for a second breach of deportation order was C
justified (see HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762).
D D
E E
Starting point and Sentence
F F
16. The lengthy sentences imposed in the past had
G obviously not deterred the defendant from re-offending. As G
such, upward adjustments in sentencing should be made for repeat
H offenders like the defendant. H
I I
17. Having fully considered all the circumstances of the
case and that of the defendant, the mitigation put forward by
J J
the defence lawyer, the sentencing guidelines laid out by the
K
Court of Appeal, and the totality principle (see HKSAR v Pham K
Van Hung, CACC 14/2011), the starting point for sentence of
L illegal remaining offence and breach of deportation order L
offence adopted by this court would be 30 months’ and 42 months’
M imprisonment respectively. M
N N
18. The defendant is entitled to one-third discount to his
sentences upon plea, and this would reduce the above-mentioned
O O
terms to 20 months’ and 28 months’ imprisonment respectively.
P P
Q Concurrent or consecutive sentence? Q
R R
19. Having also fully considered the totality principle,
the overall culpability of the defendant and the criminality of
S S
the offences, this court now orders 8 months of the sentence in
T Charge 2 to be served consecutively to the sentence in Charge 1. T
U U
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A A
20. The defendant has to serve 28 months’ imprisonment in
totality.
B B
C C
D D
H.F. Woo
Deputy 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
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