DCCC758/2019 HKSAR v. NGUYEN VAN TRUC (also known as NGUYEN VAN TRUE and NGUYEN VAN MANH) - LawHero
DCCC758/2019
HKSAR v. NGUYEN VAN TRUC (also known as NGUYEN VAN TRUE and NGUYEN VAN MANH)
區域法院（刑事）Deputy District Judge Charles J Chan25/6/2020[2020] HKDC 481
DCCC758/2019
A A
B B
DCCC 758/2019
C [2020] HKDC 481 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 758 OF 2019
F F
G --------------------------- G
HKSAR
H H
v
I NGUYEN VAN-TRUC I
(also known as NGUYEN VAN-TRUE
J and NGUYEN VAN-MANH) J
----------------------------
K K
L Before: Deputy District Judge Charles J Chan L
Date: 26 June 2020
M M
Present: Mr Ian Polson, Counsel on fiat, for the HKSAR/Director of
N Public Prosecution N
Mr Fong Hon Kuen Stephen, instructed by Cheng & Wong,
O O
assigned by the Director of Legal Aid, for the defendant
P Offence: [1] to [10] Breach of deportation order (違反遞解離境令) P
Q Q
-----------------------------------------
R REASONS FOR SENTENCE R
-----------------------------------------
S S
T 1. The defendant has pleaded guilty to 5 charges of Breach of T
deportation order, contrary to section 43(1)(a) of the Immigration
U U
V V
-2-
A A
B B
Ordinance, Cap 115. These charges are identical, saved that they took
C place on different dates i.e. 26 September 2009, 13 October 2010, 3 April C
2011, 6 August 2011 and 10 October 2011.
D D
E The Summary of Facts E
F F
2. On the 16 June 2006 a Deportation Order was issued against
G a male using the name NGUYEN Van-manh, a name that the defendant G
used at that time. This was served and executed on the 12 July 2006 with
H H
the defendant being escorted by Immigration officers to board a flight out
I of Hong Kong. I
J J
3. According to government records a male using the name
K NGUYEN Van-truc registered a marriage in Hong Kong to a Hong Kong K
Resident in June 2008. This man was the defendant.
L L
M 4. Later the defendant applied for, and was issued with a Hong M
Kong Permanent Identity Card (HKPIC) on 19 March 2019.
N N
O 5. Immigration Movement Records show the defendant to have O
travelled in and out of Hong Kong on numerous occasions including the
P P
dates specified in the charges.
Q Q
6. A fingerprint check has shown that the male NGUYEN Van-
R R
manh mentioned above and NGUYEN Van-truc are the same person.
S S
T T
U U
V V
-3-
A A
B B
7. On the 2 July 2019 at 1815 hours the defendant after arrest,
C was interviewed under caution. In the course of the said Record of C
Interview the defendant stated, inter alia, that:-
D D
E (a) His true identity is NGUYEN Van-truc (ID1); E
F F
(b) He had been to Hong Kong twice. In 2005, he sneaked
G into Hong Kong and he was deported by the G
Immigration Department in 2006;
H H
I (c) He recognized copies of his Vietnamese passports and I
his applications for HKPIC. He confirmed that all the
J J
information stated therein belonged to him;
K K
(d) He used his Vietnamese passport under ID1 to enter
L L
Hong Kong in 2008 and he used his HKPIC to enter
M Hong Kong in early 2019; M
N N
(e) He recognized the Vietnamese passport under the name
O of NGUYEN Van-manh (ID2) and the defendant O
claimed that although the passport bore his image, the
P P
personal particulars belonged to his younger brother;
Q Q
(f) As the passport bore his image, he used such passport
R R
to enter Hong Kong. He only discovered that such
S passport bore the personal particulars of his younger S
brother after presenting the same for arrival clearance
T T
in Hong Kong. As such, he continued to use it;
U U
V V
-4-
A A
B B
C (g) He recognized the Deportation Order and admitted to C
have signed on it. He understood the content of the
D D
Deportation Order;
E E
(h) When he was being served the Deportation Order, an
F F
interpreter had explained the content to him i.e. he
G could not enter Hong Kong again; G
H H
(i) He signed “MANH” on the Deportation Order because
I he used the passport with the personal particulars of his I
younger brother;
J J
K (j) In about 2003, he used the passport with ID2 to enter K
Hong Kong to seek employment. Yet, he overstayed
L L
and was later arrested. He was subsequently removed
M from Hong Kong. Since then, he had not used that M
passport again as he knew that it would be hard for him
N N
to come to Hong Kong on the strength of such passport;
O O
(k) In 2005, he sneaked into Hong Kong to work. At such
P P
time, he used a false working permit. He was later
Q arrested by the police and was sentenced to 10 odd Q
months’ imprisonment. The Immigration Department
R R
later served the said Deportation Order upon him and
S he was deported to Vietnam; S
T T
U U
V V
-5-
A A
B B
(l) After he returned to Vietnam [in 2006], the Vietnamese
C government confiscated the passport (under ID2). C
Although he knew that he was a deportee and could not
D D
come to Hong Kong, he used the passport (under ID1)
E to come to Hong Kong; E
F F
(m) He successfully entered Hong Kong using the passport
G (under ID1); G
H H
(n) He worked as a construction worker after obtaining
I HKID card; I
J J
(o) He knew that a deportee could not return to Hong Kong.
K However, he entered Hong Kong illegally by using his K
own identity and was a HKID card holder.
L L
M 8. It is admitted by the defendant that at all material times as M
specified in the relevant charges, he knowingly was in Hong Kong in
N N
breach of the said Deportation Order dated 16 June 2006.
O O
Mitigations
P P
Q 9. Mr. Fong, Counsel for the defendant, has prepared a set of Q
helpful written mitigation submissions.
R R
S 10. The defendant is a father of two children who are 7 and 6 years S
old now. His wife is a Hong Kong citizen. The defendant was 24 years
T T
old when he breached the Deportation Order for the first time in 2009.
U U
V V
-6-
A A
B B
C 11. I am told that the defendant is a loving father, a responsible C
husband and is also the sole-breadwinner of the family. The defendant
D D
worked hard as a construction worker and all along supported the family.
E The commission of the offences were out of love and affection towards his E
family. There are mitigation letter and material. I am prepared to accept
F F
that the defendant is remorseful.
G G
12. The defendant did not indicate his guilty plea timely. His trial
H H
was fixed in December 2019 and the court was only informed of his
I intention to plead guilty in May 2020. Mr Fong submits that legal I
representation was made to the Department of Justice and as a result, the
J J
6th to 10th Charges in the present case are now left on court’s file not to be
K proceeded with without the leave of the court. In my judgment, however, K
the nature of all the 10 Charges remain the same. The development does
L L
not warrant any departure from the principles laid down in the case of
M HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, therefore I do not accept that M
the defendant is entitled to a full 1/3 discount. Having considered all the
N N
circumstances in the present case, I am prepared to give the defendant a
O 30% discount on sentence. O
P P
13. Mr Fong refers to a number of authorities and submits that a
Q total term of 28 months’ imprisonment is appropriate in the present case. Q
It arises from a starting point of 42-month with a full 1/3 discount.
R R
S 14. Mr Fong also emphases that the case of HKSAR v Tommy S
Winata CACC357/2018 is more serious than the present case as there were
T T
two theft charges (pickpocketing) involved in that case whereas the
U U
V V
-7-
A A
B B
commission of the offences by the defendant was due to his wish and desire
C to stay in Hong Kong with his family and other than that he had committed C
no other offences.
D D
E 15. There were 6 breaches in Tommy Winata and the appropriate E
starting points were 27, 30, 30 36, 42 and 42 months for the relevant
F F
charges respectively. These charges were to be served concurrently and
G therefore the appellant was imposed of a 28 months’ imprisonment. G
H H
16. Having considered carefully, I shall adopt the starting points
I of 27, 30, 30, 36 and 42 for Charge 1 to 5 respectively. Giving a 30% I
discount, the sentences become 18.9, 21, 21, 25.2 and 29.4 months.
J J
Bearing in mind the totality principle, I agree that a concurrent sentence is
K appropriate and taking into account all the mitigations, a rounded down K
figure will be adopted. The overall sentence becomes 29 months’
L L
imprisonment. Charges 1 to 4 to be served concurrently to that of Charge
M 5. M
N N
O O
P P
( Charles J Chan )
Q Deputy District Judge Q
R R
S S
T T
U U
V V
A A
B B
DCCC 758/2019
C [2020] HKDC 481 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 758 OF 2019
F F
G --------------------------- G
HKSAR
H H
v
I NGUYEN VAN-TRUC I
(also known as NGUYEN VAN-TRUE
J and NGUYEN VAN-MANH) J
----------------------------
K K
L Before: Deputy District Judge Charles J Chan L
Date: 26 June 2020
M M
Present: Mr Ian Polson, Counsel on fiat, for the HKSAR/Director of
N Public Prosecution N
Mr Fong Hon Kuen Stephen, instructed by Cheng & Wong,
O O
assigned by the Director of Legal Aid, for the defendant
P Offence: [1] to [10] Breach of deportation order (違反遞解離境令) P
Q Q
-----------------------------------------
R REASONS FOR SENTENCE R
-----------------------------------------
S S
T 1. The defendant has pleaded guilty to 5 charges of Breach of T
deportation order, contrary to section 43(1)(a) of the Immigration
U U
V V
-2-
A A
B B
Ordinance, Cap 115. These charges are identical, saved that they took
C place on different dates i.e. 26 September 2009, 13 October 2010, 3 April C
2011, 6 August 2011 and 10 October 2011.
D D
E The Summary of Facts E
F F
2. On the 16 June 2006 a Deportation Order was issued against
G a male using the name NGUYEN Van-manh, a name that the defendant G
used at that time. This was served and executed on the 12 July 2006 with
H H
the defendant being escorted by Immigration officers to board a flight out
I of Hong Kong. I
J J
3. According to government records a male using the name
K NGUYEN Van-truc registered a marriage in Hong Kong to a Hong Kong K
Resident in June 2008. This man was the defendant.
L L
M 4. Later the defendant applied for, and was issued with a Hong M
Kong Permanent Identity Card (HKPIC) on 19 March 2019.
N N
O 5. Immigration Movement Records show the defendant to have O
travelled in and out of Hong Kong on numerous occasions including the
P P
dates specified in the charges.
Q Q
6. A fingerprint check has shown that the male NGUYEN Van-
R R
manh mentioned above and NGUYEN Van-truc are the same person.
S S
T T
U U
V V
-3-
A A
B B
7. On the 2 July 2019 at 1815 hours the defendant after arrest,
C was interviewed under caution. In the course of the said Record of C
Interview the defendant stated, inter alia, that:-
D D
E (a) His true identity is NGUYEN Van-truc (ID1); E
F F
(b) He had been to Hong Kong twice. In 2005, he sneaked
G into Hong Kong and he was deported by the G
Immigration Department in 2006;
H H
I (c) He recognized copies of his Vietnamese passports and I
his applications for HKPIC. He confirmed that all the
J J
information stated therein belonged to him;
K K
(d) He used his Vietnamese passport under ID1 to enter
L L
Hong Kong in 2008 and he used his HKPIC to enter
M Hong Kong in early 2019; M
N N
(e) He recognized the Vietnamese passport under the name
O of NGUYEN Van-manh (ID2) and the defendant O
claimed that although the passport bore his image, the
P P
personal particulars belonged to his younger brother;
Q Q
(f) As the passport bore his image, he used such passport
R R
to enter Hong Kong. He only discovered that such
S passport bore the personal particulars of his younger S
brother after presenting the same for arrival clearance
T T
in Hong Kong. As such, he continued to use it;
U U
V V
-4-
A A
B B
C (g) He recognized the Deportation Order and admitted to C
have signed on it. He understood the content of the
D D
Deportation Order;
E E
(h) When he was being served the Deportation Order, an
F F
interpreter had explained the content to him i.e. he
G could not enter Hong Kong again; G
H H
(i) He signed “MANH” on the Deportation Order because
I he used the passport with the personal particulars of his I
younger brother;
J J
K (j) In about 2003, he used the passport with ID2 to enter K
Hong Kong to seek employment. Yet, he overstayed
L L
and was later arrested. He was subsequently removed
M from Hong Kong. Since then, he had not used that M
passport again as he knew that it would be hard for him
N N
to come to Hong Kong on the strength of such passport;
O O
(k) In 2005, he sneaked into Hong Kong to work. At such
P P
time, he used a false working permit. He was later
Q arrested by the police and was sentenced to 10 odd Q
months’ imprisonment. The Immigration Department
R R
later served the said Deportation Order upon him and
S he was deported to Vietnam; S
T T
U U
V V
-5-
A A
B B
(l) After he returned to Vietnam [in 2006], the Vietnamese
C government confiscated the passport (under ID2). C
Although he knew that he was a deportee and could not
D D
come to Hong Kong, he used the passport (under ID1)
E to come to Hong Kong; E
F F
(m) He successfully entered Hong Kong using the passport
G (under ID1); G
H H
(n) He worked as a construction worker after obtaining
I HKID card; I
J J
(o) He knew that a deportee could not return to Hong Kong.
K However, he entered Hong Kong illegally by using his K
own identity and was a HKID card holder.
L L
M 8. It is admitted by the defendant that at all material times as M
specified in the relevant charges, he knowingly was in Hong Kong in
N N
breach of the said Deportation Order dated 16 June 2006.
O O
Mitigations
P P
Q 9. Mr. Fong, Counsel for the defendant, has prepared a set of Q
helpful written mitigation submissions.
R R
S 10. The defendant is a father of two children who are 7 and 6 years S
old now. His wife is a Hong Kong citizen. The defendant was 24 years
T T
old when he breached the Deportation Order for the first time in 2009.
U U
V V
-6-
A A
B B
C 11. I am told that the defendant is a loving father, a responsible C
husband and is also the sole-breadwinner of the family. The defendant
D D
worked hard as a construction worker and all along supported the family.
E The commission of the offences were out of love and affection towards his E
family. There are mitigation letter and material. I am prepared to accept
F F
that the defendant is remorseful.
G G
12. The defendant did not indicate his guilty plea timely. His trial
H H
was fixed in December 2019 and the court was only informed of his
I intention to plead guilty in May 2020. Mr Fong submits that legal I
representation was made to the Department of Justice and as a result, the
J J
6th to 10th Charges in the present case are now left on court’s file not to be
K proceeded with without the leave of the court. In my judgment, however, K
the nature of all the 10 Charges remain the same. The development does
L L
not warrant any departure from the principles laid down in the case of
M HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, therefore I do not accept that M
the defendant is entitled to a full 1/3 discount. Having considered all the
N N
circumstances in the present case, I am prepared to give the defendant a
O 30% discount on sentence. O
P P
13. Mr Fong refers to a number of authorities and submits that a
Q total term of 28 months’ imprisonment is appropriate in the present case. Q
It arises from a starting point of 42-month with a full 1/3 discount.
R R
S 14. Mr Fong also emphases that the case of HKSAR v Tommy S
Winata CACC357/2018 is more serious than the present case as there were
T T
two theft charges (pickpocketing) involved in that case whereas the
U U
V V
-7-
A A
B B
commission of the offences by the defendant was due to his wish and desire
C to stay in Hong Kong with his family and other than that he had committed C
no other offences.
D D
E 15. There were 6 breaches in Tommy Winata and the appropriate E
starting points were 27, 30, 30 36, 42 and 42 months for the relevant
F F
charges respectively. These charges were to be served concurrently and
G therefore the appellant was imposed of a 28 months’ imprisonment. G
H H
16. Having considered carefully, I shall adopt the starting points
I of 27, 30, 30, 36 and 42 for Charge 1 to 5 respectively. Giving a 30% I
discount, the sentences become 18.9, 21, 21, 25.2 and 29.4 months.
J J
Bearing in mind the totality principle, I agree that a concurrent sentence is
K appropriate and taking into account all the mitigations, a rounded down K
figure will be adopted. The overall sentence becomes 29 months’
L L
imprisonment. Charges 1 to 4 to be served concurrently to that of Charge
M 5. M
N N
O O
P P
( Charles J Chan )
Q Deputy District Judge Q
R R
S S
T T
U U
V V