A A
B B
DCCC 733/2012
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 733 OF 2012 D
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E HKSAR E
v
F F
NGO Van-lam aka
G HOANG Gia-hoang G
____________
H H
Before: HH Judge Dufton
I Date: 24 September 2012 I
Present: Ms Lisa Go, PP, of the Department of Justice, for HKSAR.
J Mr. Simon Si of Messrs Simon Si & Co assigned by the J
Director of Legal Aid, for the Defendant.
K K
Offences: (1) Theft (盜竊罪)
(2) Remaining in Hong Kong without the authority of the
L Director of Immigration after having landed unlawfully in L
Hong Kong
M (在香港非法入境後未得入境事務處處長授權而留在香港) M
(3) Breach of Deportation Order (違反遞解離境令)
N N
REASONS FOR SENTENCE
O O
P
1. The defendant pleads guilty to one charge of theft of $40,000, P
contrary to section 9 of the Theft Ordinance, Chapter 210 (charge 1); one
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charge of remaining in Hong Kong without authority having landed
R unlawfully, contrary to section 38(1)(b) of the Immigration Ordinance, R
Chapter 115 (charge 2); and one charge of breach of deportation order,
S S
contrary to section 43(1)(a) of the Immigration Ordinance (charge 3).
T T
U U
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A A
B B
2. In summary at about 1.30 p.m. on the 18th July this year
C Mr Chiu Chi-ling was exchanging money at a money exchanger in Fuk C
Wa Street, Sham Shui Po when the defendant suddenly snatched $40,000
D D
from his hand. The defendant fled dropping the money on the way.
E Mr Chui shouting after the defendant gave chase, which was observed by E
a passerby, Mr Liu, who helped to intercept the defendant.
F F
3. The police arrived and arrested the defendant. When asked to
G G
produce proof of identity the defendant revealed he was an illegal
H immigrant from Vietnam. In a subsequent interview the defendant H
admitted snatching the money from Mr Chiu.
I I
J 4. Enquiries revealed the defendant was subject to a deportation J
order dated 21st October 2006, prohibiting him from entering Hong Kong
K K
for life. The defendant was last deported on the 13th October 2011, also
L in breach of the same deportation order L
M 5. In passing sentence I have carefully considered everything said M
on behalf of the defendant by Mr Si, including that the defendant and his
N N
ex-wife and son aged eight have contracted HIV aids and that the
O defendant came to Hong Kong to find work so as to better provide for the O
medical treatment of his son.
P P
Q Theft Q
R R
6. Mr Si submits the defendant having just arrived in Hong Kong
S after two days travel from Vietnam was starving when he snatched the S
money and that he did not know how much money he had snatched until
T T
he was told by the police. Whilst the defendant may not have known the
U U
V V
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A A
B B
exact amount of money in Mr Chiu’s hand he must surely have been
C aware this was substantial and not just a few dollars. I am satisfied the C
proper starting point after trial is 1 year and 6 months imprisonment.
D D
Giving the defendant full credit for his plea of guilty reduces the sentence
E to 12 months imprisonment. E
F F
Unlawful remaining
G G
7. In R v. SO Man-king [1989] 1 HKLR 142 the Court of Appeal
H H
held that allowing for a plea of guilty a sentence of 15 months
I imprisonment should be used as the basic guideline unless there are I
strong humanitarian considerations to depart there from. The Court of
J J
Appeal further held that a court should take into account, by upward
K adjustment, any previous unlawful entry. K
L L
Breach of deportation order
M M
8. There are no guideline sentences for breach of a deportation order.
N N
The maximum sentence for unlawful remaining is 3 years imprisonment,
O whereas the maximum sentence for breach of deportation order is O
7 years imprisonment. The courts have therefore viewed the offence as
P P
more serious than that of unlawful remaining and have upheld sentences
Q of 18 months imprisonment after plea (see for example HKSAR v Nguyen Q
Chi-trung HCMA 1095/2001 as applied in HKSAR v Cortez Emily Bisoy
R R
[2002] 2 HKLRD 762). Again a court should take into account, by
S upward adjustment, any previous breach. S
T T
U U
V V
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A A
B B
9. The underlying criminality however for the two offences is the
C same, namely the defendant’s unlawful presence in Hong Kong. In C
HKSAR v Pham Van-tuan CACC 272/2010 the Court of Appeal said that
D D
the offence of unlawful remaining is made more serious when there was a
E deportation order. The defendant in that case had three previous E
convictions for unlawful remaining and one for breach of a deportation
F F
order. The court held that a total sentence of 23 months imprisonment
G after plea was appropriate. This was achieved by ordering 3 months on G
the breach of a deportation order to be served consecutively to the
H H
sentence for unlawful remaining.
I I
10. In HKSAR v Pham Van-hung CACC 14/2011 the defendant had
J five previous convictions for both unlawful remaining and breach of a J
deportation order. The Court of Appeal accepting this was more serious
K K
than Pham Van-tuan considered the appropriate starting points should be
L 30 months for unlawful remaining and 42 months for breach of a L
deportation order. The court further considered a total sentence of
M M
28 months imprisonment after plea to be appropriate and accordingly
N N
ordered both sentences to be served concurrently.
O O
11. The defendant having four previous convictions for unlawful
P P
remaining and three convictions for breach of a deportation order I am
Q satisfied the proper starting point after trial for unlawful remaining is Q
2 years and 6 months imprisonment and for breach of deportation order is
R R
3 years and 3 months imprisonment. Giving the defendant full credit for
S his pleas of guilty the sentences are reduced to 1 year and 8 months S
imprisonment for unlawful remaining and 2 years and 2 months
T T
imprisonment for breach of the deportation order. I am satisfied a total
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V V
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A A
B B
sentence of 26 months imprisonment is appropriate and therefore order
C the sentences on the two charges to be served concurrently. C
D D
12. The offences are however separate and distinct from the theft
E charge. In HKSAR v. Tong Fuk-sing [1999] 3 HKLRD 710 the Court of E
Appeal said that, unless, for example, there exist some compelling
F F
circumstances, such as strong humanitarian reasons, the sentence for the
G immigration offences should normally be imposed consecutively to the G
sentence imposed for the offence which accompanies it.
H H
13. Whilst I sympathise with the defendant as to his health condition
I I
and that of his family, in particular his young son, the defendant knew of
J this before leaving Vietnam yet still decided to come to Hong Kong, J
knowing he would receive a lengthy prison sentence if arrested. Further I
K K
am satisfied the prison authorities will closely monitor the defendant’s
L health condition as no doubt they have in the past. Should there be L
deterioration in his health the defendant can seek clemency from the
M M
executive. I am satisfied there are no strong humanitarian grounds to
N N
reduce the sentence in this case.
O O
14. I am satisfied a wholly consecutive sentence is appropriate for the
P P
theft offence making a total sentence to be served by the defendant of
Q 3 years and 2 months imprisonment, which I am satisfied properly Q
reflects his criminal culpability on the three charges.
R R
S S
T T
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V V
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A A
B B
15. Giving the defendant full credit for his pleas of guilty he is
C convicted and sentenced as follows: C
D Charge 1 – 12 months imprisonment; D
Charge 2 – 1 year and 8 months imprisonment;
E E
Charge 3 – 2 years and 2 months imprisonment;
F F
I order charges 2 and 3 to be served concurrently but consecutive
G G
to charge 1, making a total sentence to be served by the defendant of
H 3 years and 2 months imprisonment. H
I I
J J
(D. J. DUFTON)
K
District Judge K
L L
M M
N N
O O
P P
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R R
S S
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