DCCC 985/2012
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO.985 OF 2012
---------------------------
HKSAR
v.
NGO QUANG THAO also known as
NG KWONG CHO and NGO QUANG THOA
---------------------------
Before: District Judge Douglas T.H. Yau
Date: 29 November 2012 at 12:36pm
Present: Ms. Monica Chan, Public Prosecutor for HKSAR
Mr. Lok Hing Wah, of M/S Lok Hing Wah & Co.,
assigned by DLA, for the defendant
Offences: 1) Breach of deportation order (違反遞解離境令)
2) Remaining in Hong Kong without the authority of the Director of
Immigration after having landed unlawfully in Hong Kong
(在香港非法入境後未得入境事務處處長授權而留在香港)
Reasons for Sentence
1. The defendant pleaded guilty to one charge of ‘breach of deportation order’ 1
and one charge of ‘remaining in Hong Kong without the authority of the
Director of Immigration after having landed unlawfully in Hong Kong’ 2.
Summary of Facts
2. By a Deportation Order dated 9th April 2002, the defendant was ordered to
leave Hong Kong and prohibited from being in Hong Kong at any time
thereafter. The defendant was deported back to Vietnam on 16 th May 2002.
He was also subsequently deported on 2 other occasions on 22nd July 2004
and 15th November 2006.
3. The defendant was intercepted at a Police road block whilst travelling in a
taxi at about 5:40am on 24th September 2012. The defendant failed to
produce any identity documents and was arrested for the offence of
‘unlawful remaining’. Upon investigation, the above mentioned deportation
order was revealed and the defendant was charged with the present offences.
Previous convictions
1
Contrary to s.43(1)(a) of the Immigration Ordinance, Cap.115
2
Contrary to s.38(1)(b) of the Immigration Ordinance
2
4. The defendant has 8 previous convictions from 3 court appearances. 3 of his
convictions were for unlawfully remaining in Hong Kong and 2 for breach of
deportation order. His last conviction was on 30th March 2005 for the same
kind of offences he is now facing and was sentenced to imprisonment for a
total of 18 months. The defendant was released on 8 th November 2006 and
deported back to Vietnam.
Mitigation
5. The defendant is 32, born in Vietnam, educated up to primary level. The
defendant is married and was living with his wife, two children and his
parents in Vietnam prior to coming to Hong Kong on this occasion. The
defendant’s father has been a mental patient for 30 years and his mother
suffers from asthma. The defendant worked as a farmer and factory worker
in Vietnam. I am told that he just wants to return to Vietnam to take care of
his family.
6. Mr. Lok for the defendant referred to the case of HKSAR v Tran Viet Thanh,
CACC 54 of 2011, CACC 221/2011 and HCMA 360/2011 (heard together).
There the Court of Appeal was taken through a comprehensive review and in
depth analysis of the authorities on the related offences including those in
our present case.
7. Mr. Lok submits that the applicant Tran Viet Thanh had a similar record to
that of our present defendant. The Court of Appeal considered that a sentence
of 18 months’ imprisonment after plea in relation to the applicant’s unlawful
remaining charge and a sentence of 20 months’ imprisonment after plea in
relation to the breach of deportation order charge was appropriate. The Court
then ordered 5 months of the breach of deportation order sentence to be
served consecutively to the rest of the sentences, resulting in a total sentence
of 25 months’ imprisonment.
Sentence
8. The defendant is a repeated offender, this is his third similar conviction for
the charge 1 and fourth similar conviction for the charge 2 offence.
9. Although I sympathize with the defendant for his parents’ health and am
aware of the defendant’s newborn child, the fact is the defendant himself
knew about all these circumstances and still decided to risk his liberty
coming to Hong Kong. Given that this is not his first commission of the 2
offences, the defendant knew clearly what the consequences would be should
he be caught. The defendant, unfortunately, has no one but himself to blame
for having to spend a prolonged period of time away from his family as a
result of his transgression.
Charge 1
10. Bearing in mind that this is the defendant’s third similar conviction and the
various authorities referred to in the case of Tran Viet Thanh, I will adopt a
starting point of 30 months’ imprisonment in relation to charge 1 and
sentence the defendant to 20 months’ imprisonment upon discounting the
sentence for his plea of guilty.
3
Charge 2
11. I am aware that charge 2 is a less serious offence than charge 1 in the eye of
the court. This is however the fourth similar conviction for the defendant and
as such there must be some upward adjustment of the initial starting point.
12. I will adopt a starting point of 27 months’ imprisonment and reduce it by one
third to that of 18 months’ imprisonment in recognition of the defendant’s
plea of guilty.
Totality
13. As it had previously been pointed out by the Court of Appeal in the case of
HKSAR v Pham Van Tuan CACC 272/2010, the unlawful remaining and
breach of deportation order offences arose out of the same facts and are not
separate and distinct offences.
14. Applying the principle of totality, I will order that 5 months of charge 2 to be
served consecutively to the sentence in charge 1, the rest of the sentence to
be served concurrently. The defendant is therefore sentenced to a total of 25
months’ imprisonment.
Douglas T.H. Yau
District Judge