A A
B DCCC 737/2014 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 737 OF 2014
E E
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F HKSAR F
v.
G G
DANG TRUNG DOAN
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H H
Before: HH Judge Douglas T.H. Yau
I Date: 29th September 2014 at 04:01 pm I
Present: Mr. Joe Hui, Public Prosecutor, of the Department of
J J
Justice, for HKSAR
K K
Mr. Duncan Fung of M/s Bernard Wong & Co, assigned by
L
DLA, for the Defendant L
Offences: [1] Remaining in Hong Kong without the authority of the
M M
Director of Immigration after having landed unlawfully in
N
Hong Kong (在香港非法入境後未得入境事務處處長授權 N
而留在香港)
O O
[2] Breach of deportation order (違反遞解離境令)
P P
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Q
Reasons for Sentence Q
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1. The defendant pleaded guilty to one charge of Remaining in
S Hong Kong without the authority of the Director Immigration after having S
landed unlawfully in Hong Kong, contrary to s.38(1)(b) of the Immigration
T T
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B Ordinance, Cap.115; and one charge of Breach of deportation order, B
contrary to s.43(1)(a) of the Immigration Ordinance.
C C
D Summary of facts D
E E
2. The defendant was admitted into hospital after he felt unwell
F at 05:53am on 15 July 2014. The defendant disclosed to the nurse of the F
ward that he was an illegal immigrant a week later and the matter was
G G
reported to the Police.
H H
3. Upon inquiry, the defendant claimed that he entered China
I I
from Vietnam and then sneaked into Hong Kong through Man Kam To by
J hiding underneath a cross-border truck on 14 July 2014. J
K K
4. Subsequent fingerprint check revealed that the defendant is
L L
the subject of a deportation order dated 20 December 2007 requiring him
M
to leave Hong Kong and prohibiting him from being in Hong Kong M
anytime thereafter.
N N
O 5. Not counting the present case, the defendant had breached his O
deportation order on 3 previous occasions. The defendant was last
P P
deported to Hanoi on 27 March 2014.
Q Q
6. In a later cautioned interview, the defendant admitted that this
R R
was the 5th time he sneaked into Hong Kong, he knew he was in breach of a
S deportation order and he came to Hong Kong for drug rehabilitation. S
T T
Previous convictions
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B B
7. The defendant has 10 previous conviction. Of those, 4 were
C C
for unlawfully remaining, 3 were for breach of a deportation order. His last
D conviction was on 19 April 2012 when he was sentenced to 3 years’ D
imprisonment for unlawfully remaining and breach of deportation order.
E E
F Mitigation F
G G
8. The defendant is 26, divorced and with a daughter aged 9. The
H daughter lives with the defendant’s ex-mother-in-law. The defendant helps H
with his own mother’s farming in a remote village in Hai Phong. The
I I
defendant was educated in Vietnam up to secondary level. He got into the
J habit of taking drugs and had been into drug addiction centres in Vietnam. J
Heroin was however easily available there and much cheaper than Hong
K K
Kong, and it has been impossible for him to stop his drug abuse. The
L L
defendant came into Hong Kong in order to get into jail to rid himself of
M
his addiction. M
N N
Sentencing cases
O O
9. Mr. Fung for the defendant referred first to the case of HKSAR
P P
v MAC Nhu-ky, DCCC 401/2012, which he thinks falls on all four with our
Q present case. There the defendant pleaded guilty to the same two charges. Q
It was his 4th breach of a deportation order and 5th unlawful remaining
R R
conviction. The learned Deputy District Judge adopted a starting point of
S 31.5 months’ imprisonment for the remaining charge and a starting point S
of 36 months’ imprisonment for the breach of deportation order charge,
T T
with discounted sentences of 21 and 24 months’ imprisonment
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B respectively. 4 months of charge 2 was ordered to run consecutively to the B
sentence in charge 1, resulting in the final sentence of 25 months’
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imprisonment.
D D
10. In HKSAR v NGUYEN Thi Bich Thoa, DCCC 581/2013, the
E E
defendant pleaded guilty to using a forged identity card, unlawfully
F remaining in Hong Kong and breach of deportation order. It was her 6 th F
conviction for the breach of a deportation order and 6th conviction for
G G
unlawfully remaining.
H H
11. The learned judge referred to the High Court case of HKSAR v
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Cortez Emily Bisoy [2002] 2 HKLRD 762 where it was held that a sentence
J of 18 months’ imprisonment was appropriate for a first offender of a J
breach of deportation order charge, but the sentence must be adjusted
K K
upwards for repeated offenders.
L L
M
12. The learned judge referred also to HKSAR v Pham Van Hung, M
CACC 14 of 2011 where the Court of Appeal considered a 28 months’
N N
imprisonment sentence appropriate for a 5th conviction on a charge of
O breach of deportation order. There the applicant was also convicted for a O
6th time of unlawfully remaining in Hong Kong and a sentence of 20
P P
months’ imprisonment was considered appropriate. The sentences were
Q then ordered to run concurrently. Q
R R
13. The learned judge in DCCC 581/2013 went on to sentence the
S defendant to 18 months’ imprisonment on the use of forged identity card S
charge; 24 months’ imprisonment for the unlawful remaining charge and
T T
28 months’ imprisonment for the breach of deportation order charge.
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B These are all sentences after plea. All 3 sentences were ordered to run B
concurrently. The case went on appeal as CACC 295 of 2013 and the
C C
sentence was upheld.
D D
14. Mr. Hui for the prosecution referred to the case of HKSAR v
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Bui Van Khai, CACC175/2012. It was the applicant’s 3 conviction for
rd
F unlawfully remaining and 2 nd conviction for being in breach of a F
deportation order.
G G
H 15. The Court of Appeal first of all find that the sentences H
imposed on the 2 charges should run concurrently, since on entering Hong
I I
Kong illegally, the applicant had committed both offences where the
J underlying criminality was the same, namely his unlawful presence in J
Hong Kong. It is the Court’s view that while a charge for unlawfully
K K
remaining in Hong Kong would be made more serious when there was a
L L
deportation order, it did not mean a partially consecutive sentence was
M
necessarily appropriate. M
N N
16. The Court of Appeal furthermore find that a total sentence of
O 3 years after plea for the 2 charges was manifestly excessive even though O
the applicant was a repeated offender. The Court did not disturb the
P P
individual sentences of 18 months and 24 months but ordered that they
Q should run concurrently, resulting in an overall sentence of 2 years’ Q
imprisonment after plea.
R R
S Sentence S
T T
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B 17. The maximum sentence under charge 1 is that of 3 years’ B
imprisonment and a fine at level 4. The maximum sentence under charge 2
C C
is that of 7 years’ imprisonment. Breach of a deportation order is therefore
D the more serious of the 2 offences in the eyes of the legislature. D
E E
18. The defendant has shown no regard to the deportation order.
F Every time he sneaks into Hong Kong, considerable amount of manpower F
and taxpayers’ money will have to be spent to deal with him. The
G G
defendant’s latest convictions were in April 2012 when he was sentenced
H to a total of 36 months’ imprisonment for the 2 charges. It must therefore H
have only been a short time after the defendant’s release that he decided to
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sneak back into Hong Kong again. I find this an aggravating factor.
J J
19. I find the defendant’s repeated breach of the deportation order
K K
as well as his repeated entering in Hong Kong illegally and then remaining
L L
an aggravating factor. The sentence imposed must include a factor of
M
deterrence. M
N N
Unlawfully Remaining
O O
20. In relation to charge 1, this being the defendant’s 5th similar
P P
conviction, I will adopt a starting point such that the sentence after the
Q one-third discount was applied is that of 21 months’ imprisonment. Q
R R
Breach of Deportation Order
S S
T T
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B 21. In relation to charge 2, this being the defendant’s 4th similar B
conviction, I will adopt a starting point such that the sentence after plea is
C C
that of 27 months’ imprisonment.
D D
Totality
E E
F 22. Bearing in mind recent authorities suggesting that the F
sentences in cases involving the 2 charges like our present ones should run
G G
concurrently, I order the sentences in the two charges be served
H concurrently. Total sentence is therefore 27 months’ imprisonment. H
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J J
(Douglas T.H. Yau)
K K
District Judge
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N N
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