A A
B B
DCCC 94/2015
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 94 OF 2015 D
____________
E HKSAR E
v
F F
NGUYEN VAN THUY
G also known as DO VAN DUNG G
____________
H H
Before: HH Judge Dufton
I Date: 14 March 2016 I
Present: Miss Lily Yip, PP, of the Department of Justice, for HKSAR.
J Mr Bill Tong of Christopher K Y Wong, J
assigned by the Director of Legal Aid, for the Defendant.
K K
Offences: (1) Remaining in Hong Kong without the authority of the
Director of Immigration after having landed unlawfully in
L Hong Kong L
(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 (2) Breach of Deportation Order (違反遞解離境令) M
N N
REASONS FOR SENTENCE
O O
1. Nguyen Van Thuy on 19 March 2015 you pleaded guilty to
P one charge of remaining in Hong Kong without authority having landed P
unlawfully, contrary to section 38(1)(b) of the Immigration Ordinance1,
Q Q
(charge 1); and one charge of breach of deportation order, contrary to
R section 43(1)(a) of the Immigration Ordinance (charge 2). R
S S
T T
1
Cap 115
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A A
B B
2. In summary on the 1 September 1992 you were made the
C subject of a deportation order prohibiting you from coming to Hong Kong C
2
for life .
D D
3. On 19 December 2014 you were intercepted by the police.
E E
3
You were arrested when you showed a Vietnamese passport in which no
F entry into Hong Kong or permission to remain in Hong Kong could be F
found. Under caution you admitted smuggling into Hong Kong two days
G G
earlier knowing you were in breach of the deportation order.
H H
4. During mitigation Mr Tong submitted a letter dated 2
I I
February 2015 4 from the Removal Assessment Section of the
J Immigration Department showing your intention to seek non-refoulement J
protection on the grounds of torture.
K K
L
5. The prosecution were unaware that a claim for non- L
refoulement protection had been made by you. The prosecution policy is
M M
not to proceed with immigration offences related to the claim until the
N conclusion of the assessment of the claim. If the claim is successful then N
the prosecution would not proceed with the immigration offences. Miss
O O
Yip therefore applied for an adjournment to ascertain the progress of the
P claim and to decide whether or not to proceed. P
Q 6. The case was adjourned to 19 May 2015 when the court was Q
informed that you lodged your claim on 21 January 2015. The case was
R R
further adjourned to 19 November 2015 pending determination of the
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2
MFI-1.
T 3
T
MFI-1.
4
MFI-3.
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claim. On 19 November the court was informed that the screening
C interview would take place on 27 November 2015. The case was C
therefore adjourned until today pending the result of the screening
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interview.
E E
7. Today I am told your claim was rejected and that you have
F filed an appeal against that decision. Although it is expected the decision F
of the Appeal Board will be made known soon, perhaps within a few
G G
months, you do not wish to wait for that decision and ask to be sentenced
H today. Taking into account that you pleaded guilty almost one year ago; H
the likely sentence to be imposed and that you wish the court to proceed
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with sentence and not wait for the result of the Appeal Board, I am
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satisfied that sentence should not be further adjourned.
K K
8. In passing sentence I have carefully considered everything
L said on your behalf by Mr Tong, including that you came to Hong Kong L
via China because you were being chased by a loan shark in Vietnam.
M M
Mr Tong submitted that you came to Hong Kong to file your claim for
N non-refoulement protection and not to commit other offences. N
O O
9. In this regard you went to the Immigration Department on 18
P December 2014 to make your claim however you were requested to P
return on 6 January 20155. Mr Tong accepts that by being told to return
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on 6 January 2015 this did not amount to you being given permission to
R remain in Hong Kong until that time. R
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T T
5
MFI-2.
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Unlawful remaining
C C
10. In R v. So Man King6the Court of Appeal held that allowing
D for a plea of guilty a sentence of 15 months imprisonment (starting point D
of 22½ months) should be used as the basic guideline unless there are
E E
strong humanitarian considerations. The Court of Appeal further held
F that a court should take into account, by upward adjustment, any previous F
unlawful entry.
G G
H Breach of deportation order H
I 11. There are no guideline sentences for breach of deportation I
order. Generally the starting point for a first breach is one of 27 months
J J
imprisonment (see for example HKSAR v Ta Dinh Son7).
K K
12. Since 1992, when you were deported for life, you have
L L
entered Hong Kong in breach of the deportation order on five occasions
M in 1995, 1998, 2000, 2005 and 2008 when you received sentences ranging M
between 15 months and 30 months imprisonment.
N N
O 13. Repeat offending is a significant aggravating feature O
justifying enhancement of the starting point of 27 months imprisonment.
P P
In HKSAR v Ta Dinh Son the Court of Appeal held that 4 years
Q imprisonment was the appropriate sentence for the 7th breach of a Q
deportation order.
R R
S S
T 6
T
[1989] 1 HKLR 142.
7
CACC 348/2013.
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14. In HKSAR v Nguyen Thi Bich Thoa8, submitted by Mr Tong,
C the applicant was sentenced to concurrent sentences of 18-28 months C
imprisonment having pleaded guilty to using a forged identity card;
D D
unlawfully remaining and breach of a deportation order. In refusing leave
E to appeal Macrae JA said that the applicant may be considered to have E
been very fortunate in the sentence she received.
F F
15. Taking into account this is your sixth unlawful entry into
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Hong Kong I am satisfied the starting point for charge 1 is to be increased
H to 30 months imprisonment and your sixth breach of deportation the H
starting point for charge 2 is to be increased to 45 months imprisonment.
I I
J 16. Giving you full credit for your pleas of guilty you are J
convicted and sentenced to 20 months imprisonment on charge 1 and to
K K
30 months imprisonment on charge 2. Both offences arising out of your
L unlawful presence in Hong Kong I order the sentences to be served L
concurrently. You will therefore serve a total sentence of 30 months
M M
imprisonment which is the same total sentence imposed last time you
N entered Hong Kong in breach of the deportation order. Should you return N
to Hong Kong again the sentence will no doubt be higher next time.
O O
P P
Q Q
(D. J. DUFTON)
R R
District Judge
S S
T T
8
CACC 295/2013.
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