區域法院（刑事）Deputy District Judge Bina Chainrai6/7/2016
DCCC438/2016
A A
B DCCC 438/2016 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO 438 OF 2016
E E
-----------------
F HKSAR F
v
G G
NGUYEN THI PHU
H ----------------- H
I I
J Before : Deputy District Judge Bina Chainrai in Court J
Date of Sentence : 6th July, 2016 at 09:43 a.m.
K K
Present : Mr Joe Hui, Public Prosecutor, for HKSAR
L L
Mr Chan Tak-yan of Messrs. Charles Chan & Co,
M assigned by the Director of Legal Aid, for the M
Defendant
N N
Offences : (1) Remaining in Hong Kong without the authority of
O the Director of Immigration after having landed O
unlawfully in Hong Kong
P P
(2) Breach of deportation order
Q Q
R R
-------------------------------------------
REASONS FOR SENTENCE
S S
-------------------------------------------
T T
U U
CRT20/6.7.2016/ DCCC 438/2016/Sentence
V V
-2-
A A
B B
1. The Defendant has pleaded guilty to one count of “Remaining
C in Hong Kong without the authority of the Director of Immigration after C
having landed unlawfully in Hong Kong”, contrary to section 38(1)(b) of
D D
the Immigration Ordinance, Cap. 115 (the first charge) and one count of
E “breach of deportation order”, contrary to section 43(1)(a) of the E
Immigration Ordinance, Cap. 115 (the second charge).
F F
G G
Facts
H H
I I
2. On the afternoon of 2 April, 2016, WPC 18366 and her
J colleague were on patrol along Castle Peak Road in Sham Shui Po, J
Kowloon. At 3.27 p.m., they were patrolling the staircase on the 2nd floor,
K K
No. 306 Castle Peak Road, Sham Shui Po when they spotted the Defendant
L and another Vietnamese female. WPC 18366 intercepted the Defendant L
and asked her to produce her proof of identity. The Defendant could not do
M M
so, and told the police officer in punti that she and the other female were
N N
illegal immigrants. WPC 18366 immediately arrested the Defendant for
O
the offence of “Unlawful Remaining”. Subsequently under caution, in the O
presence of a Vietnamese interpreter, the Defendant admitted, inter alia,
P P
that she had been born in Vietnam on 24, January, 1967. She entered
Q Mainland China on 30 March, 2016 and arrived in Shenzhen on 31 March, Q
2016 and took a boat from Shenzhen to Hong Kong at about 6 p.m. on 31
R R
March, 2016. She had been staying in a park after entering Hong Kong.
S She also admitted that this was her fourth illegal entry into Hong Kong and S
that she had spent HK$22,000 to travel to Hong Kong. A fingerprint check
T T
revealed that the Defendant was the subject of a deportation order issued
U on 11 August, 2010. She was then arrested for the offence of “Breach of U
CRT20/6.7.2016/ DCCC 438/2016/Sentence
V V
-3-
A A
B B
Deportation Order” and cautioned and said under caution that she knew
C she had breached the deportation order. She claimed she had difficulties in C
living in Vietnam and she had illegally entered Hong Kong to avoid debts.
D D
E E
Previous convictions
F F
G G
3. The Defendant has 5 previous convictions in two court
H appearances. She has two previous convictions similar to Charge 1, i.e. H
this is her third unlawful entry into Hong Kong, and one previous similar to
I I
charge 2.
J J
K K
Mitigation
L L
M M
4. The Defendant is aged 49 years. She is a Vietnamese. Mr.
N Chan, for the Defendant, informed the Court that the Defendant took no N
issue with contents of the Antecedent Statement, wherein she was
O O
described as being single and having completed primary education in
P Vietnam and with no working experience. Yet in mitigation, he said he was P
instructed to inform the Court that the Defendant was divorced with 2
Q Q
children a daughter aged 21 years, a medical student who will graduate in
R less than a year, and a son aged 19 years who is unemployed. In Vietnam, R
she was a farmer, earning about 300 million dong, which I was told was the
S S
equivalent of HK$1,000 a month. She was the main financial support of
T her family. She also has 3 sisters – an elder sister aged 58 years, a farmer in T
Vietnam, who is now the main financial support of the family, and 2 elder
U U
CRT20/6.7.2016/ DCCC 438/2016/Sentence
V V
-4-
A A
B B
sisters aged 55 and 53 years, who both suffer from mental illness and thus
C cannot work and require constant care from family members. She had C
come to Hong Kong to avoid harassment from Vietnamese extortionists
D D
from whom she had borrowed money to support the family. She knew that
E she would not be able to attend the graduation of her daughter. She said E
that after her daughter graduated, she would become the main financial
F F
support of the family so the Defendant’s chance of re-offending was low.
G When asked by the Court if the Defendant had spent HK$22,000 to travel G
to Hong Kong, as she had admitted when the summary of facts were read to
H H
her, Mr. Chan said he had nothing to say in that regard. Mr. Chan had
I submitted a list of authorities on sentence, which authorities I have I
considered. He also submitted that the sentences for the two offences
J J
should run concurrently. In passing sentence, I have considered all that has
K been urged upon me by Mr. Chan on behalf of the Defendant as well as all K
the authorities that have been handed up.
L L
M M
Sentence
N N
O O
7. For the first charge of “unlawful remaining”, the maximum
P P
sentence is a fine at level 4 (i.e. HK$25,000) and 3 years’ imprisonment.
Q The maximum sentence for the second charge of breach of deportation Q
order is 7 years’ imprisonment upon conviction on indictment.
R R
S S
8. In R. v. So Man-king, [1989] 1 HKLR 142, the Court of
T Appeal held that allowing for a guilty plea, a sentence of 15 months’ T
U
imprisonment (i.e. a starting point of 22 ½ months’ imprisonment) should U
CRT20/6.7.2016/ DCCC 438/2016/Sentence
V V
-5-
A A
B B
be used as the basic guideline unless there are strong humanitarian
C considerations. The Court of Appeal further held that a Court should take C
into account. by upward adjustment, any previous unlawful entry (see
D D
HKSAR v Bui Van Khai, CACC 175/2012 HKSAR v Pham Van Hung,
E CACC 14/2011 and HKSAR v Ta Dinh Son, CACC 348/2013). E
F F
G
9. There are no guideline sentences for offences of breach of G
deportation orders. Generally, the starting point for a first breach is one of
H H
27 months’ imprisonment (see for example HKSAR v. Ta Dinh Son,
I
CACC 348/2013). Repeat offending is a significant aggravating feature I
justifying an upward adjustment of the starting point. For the second to
J J
seventh commission of this offence, the starting point ranges from 36 to 42
K months’ imprisonment (see HKSAR v Bui Van Khai, CACC 175/2012, K
HKSAR v Pham Van Hung, CACC 14/2011 and HKSAR v Ta Dinh Son,
L L
CACC 348/2013).
M M
N
10. Further, according to the Court of Appeal’s guideline, the N
O
sentences for the first charge and the second charge should run O
concurrently.
P P
Q Q
11. Save for the Defendant’s pleas of guilty, in my view there is
R little other mitigation of weight before me. Counsel did not address me in R
respect of any humanitarian considerations to be considered, nor did I see
S S
any on the mitigation put before me.
T T
U U
CRT20/6.7.2016/ DCCC 438/2016/Sentence
V V
-6-
A A
B B
12. In respect of the first charge, since it is the Defendant’s third
C unlawful entry into Hong Kong, I adopt a starting point of 2 years and 3 C
months’ (i.e. 27 months) imprisonment. She is entitled to the usual
D D
one-third discount for her guilty plea. The sentence is therefore reduced to
E 18 months’ imprisonment. E
F F
G
13. For the second charge, since it is the Defendant’s second such G
conviction, a starting point of 33 months is appropriate. The sentence is
H H
reduced to 22 months’ imprisonment to reflect the Defendant’s guilty plea.
I I
J 14. The sentences for the two charges are ordered to run J
concurrently. The total sentence imposed on the Defendant is 22 months’
K K
imprisonment.
L L
M M
Bina Chainrai
N Deputy District Judge N
O O
P P
Q Q
R R
S S
T T
U U
CRT20/6.7.2016/ DCCC 438/2016/Sentence
V V
A A
B DCCC 438/2016 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO 438 OF 2016
E E
-----------------
F HKSAR F
v
G G
NGUYEN THI PHU
H ----------------- H
I I
J Before : Deputy District Judge Bina Chainrai in Court J
Date of Sentence : 6th July, 2016 at 09:43 a.m.
K K
Present : Mr Joe Hui, Public Prosecutor, for HKSAR
L L
Mr Chan Tak-yan of Messrs. Charles Chan & Co,
M assigned by the Director of Legal Aid, for the M
Defendant
N N
Offences : (1) Remaining in Hong Kong without the authority of
O the Director of Immigration after having landed O
unlawfully in Hong Kong
P P
(2) Breach of deportation order
Q Q
R R
-------------------------------------------
REASONS FOR SENTENCE
S S
-------------------------------------------
T T
U U
CRT20/6.7.2016/ DCCC 438/2016/Sentence
V V
-2-
A A
B B
1. The Defendant has pleaded guilty to one count of “Remaining
C in Hong Kong without the authority of the Director of Immigration after C
having landed unlawfully in Hong Kong”, contrary to section 38(1)(b) of
D D
the Immigration Ordinance, Cap. 115 (the first charge) and one count of
E “breach of deportation order”, contrary to section 43(1)(a) of the E
Immigration Ordinance, Cap. 115 (the second charge).
F F
G G
Facts
H H
I I
2. On the afternoon of 2 April, 2016, WPC 18366 and her
J colleague were on patrol along Castle Peak Road in Sham Shui Po, J
Kowloon. At 3.27 p.m., they were patrolling the staircase on the 2nd floor,
K K
No. 306 Castle Peak Road, Sham Shui Po when they spotted the Defendant
L and another Vietnamese female. WPC 18366 intercepted the Defendant L
and asked her to produce her proof of identity. The Defendant could not do
M M
so, and told the police officer in punti that she and the other female were
N N
illegal immigrants. WPC 18366 immediately arrested the Defendant for
O
the offence of “Unlawful Remaining”. Subsequently under caution, in the O
presence of a Vietnamese interpreter, the Defendant admitted, inter alia,
P P
that she had been born in Vietnam on 24, January, 1967. She entered
Q Mainland China on 30 March, 2016 and arrived in Shenzhen on 31 March, Q
2016 and took a boat from Shenzhen to Hong Kong at about 6 p.m. on 31
R R
March, 2016. She had been staying in a park after entering Hong Kong.
S She also admitted that this was her fourth illegal entry into Hong Kong and S
that she had spent HK$22,000 to travel to Hong Kong. A fingerprint check
T T
revealed that the Defendant was the subject of a deportation order issued
U on 11 August, 2010. She was then arrested for the offence of “Breach of U
CRT20/6.7.2016/ DCCC 438/2016/Sentence
V V
-3-
A A
B B
Deportation Order” and cautioned and said under caution that she knew
C she had breached the deportation order. She claimed she had difficulties in C
living in Vietnam and she had illegally entered Hong Kong to avoid debts.
D D
E E
Previous convictions
F F
G G
3. The Defendant has 5 previous convictions in two court
H appearances. She has two previous convictions similar to Charge 1, i.e. H
this is her third unlawful entry into Hong Kong, and one previous similar to
I I
charge 2.
J J
K K
Mitigation
L L
M M
4. The Defendant is aged 49 years. She is a Vietnamese. Mr.
N Chan, for the Defendant, informed the Court that the Defendant took no N
issue with contents of the Antecedent Statement, wherein she was
O O
described as being single and having completed primary education in
P Vietnam and with no working experience. Yet in mitigation, he said he was P
instructed to inform the Court that the Defendant was divorced with 2
Q Q
children a daughter aged 21 years, a medical student who will graduate in
R less than a year, and a son aged 19 years who is unemployed. In Vietnam, R
she was a farmer, earning about 300 million dong, which I was told was the
S S
equivalent of HK$1,000 a month. She was the main financial support of
T her family. She also has 3 sisters – an elder sister aged 58 years, a farmer in T
Vietnam, who is now the main financial support of the family, and 2 elder
U U
CRT20/6.7.2016/ DCCC 438/2016/Sentence
V V
-4-
A A
B B
sisters aged 55 and 53 years, who both suffer from mental illness and thus
C cannot work and require constant care from family members. She had C
come to Hong Kong to avoid harassment from Vietnamese extortionists
D D
from whom she had borrowed money to support the family. She knew that
E she would not be able to attend the graduation of her daughter. She said E
that after her daughter graduated, she would become the main financial
F F
support of the family so the Defendant’s chance of re-offending was low.
G When asked by the Court if the Defendant had spent HK$22,000 to travel G
to Hong Kong, as she had admitted when the summary of facts were read to
H H
her, Mr. Chan said he had nothing to say in that regard. Mr. Chan had
I submitted a list of authorities on sentence, which authorities I have I
considered. He also submitted that the sentences for the two offences
J J
should run concurrently. In passing sentence, I have considered all that has
K been urged upon me by Mr. Chan on behalf of the Defendant as well as all K
the authorities that have been handed up.
L L
M M
Sentence
N N
O O
7. For the first charge of “unlawful remaining”, the maximum
P P
sentence is a fine at level 4 (i.e. HK$25,000) and 3 years’ imprisonment.
Q The maximum sentence for the second charge of breach of deportation Q
order is 7 years’ imprisonment upon conviction on indictment.
R R
S S
8. In R. v. So Man-king, [1989] 1 HKLR 142, the Court of
T Appeal held that allowing for a guilty plea, a sentence of 15 months’ T
U
imprisonment (i.e. a starting point of 22 ½ months’ imprisonment) should U
CRT20/6.7.2016/ DCCC 438/2016/Sentence
V V
-5-
A A
B B
be used as the basic guideline unless there are strong humanitarian
C considerations. The Court of Appeal further held that a Court should take C
into account. by upward adjustment, any previous unlawful entry (see
D D
HKSAR v Bui Van Khai, CACC 175/2012 HKSAR v Pham Van Hung,
E CACC 14/2011 and HKSAR v Ta Dinh Son, CACC 348/2013). E
F F
G
9. There are no guideline sentences for offences of breach of G
deportation orders. Generally, the starting point for a first breach is one of
H H
27 months’ imprisonment (see for example HKSAR v. Ta Dinh Son,
I
CACC 348/2013). Repeat offending is a significant aggravating feature I
justifying an upward adjustment of the starting point. For the second to
J J
seventh commission of this offence, the starting point ranges from 36 to 42
K months’ imprisonment (see HKSAR v Bui Van Khai, CACC 175/2012, K
HKSAR v Pham Van Hung, CACC 14/2011 and HKSAR v Ta Dinh Son,
L L
CACC 348/2013).
M M
N
10. Further, according to the Court of Appeal’s guideline, the N
O
sentences for the first charge and the second charge should run O
concurrently.
P P
Q Q
11. Save for the Defendant’s pleas of guilty, in my view there is
R little other mitigation of weight before me. Counsel did not address me in R
respect of any humanitarian considerations to be considered, nor did I see
S S
any on the mitigation put before me.
T T
U U
CRT20/6.7.2016/ DCCC 438/2016/Sentence
V V
-6-
A A
B B
12. In respect of the first charge, since it is the Defendant’s third
C unlawful entry into Hong Kong, I adopt a starting point of 2 years and 3 C
months’ (i.e. 27 months) imprisonment. She is entitled to the usual
D D
one-third discount for her guilty plea. The sentence is therefore reduced to
E 18 months’ imprisonment. E
F F
G
13. For the second charge, since it is the Defendant’s second such G
conviction, a starting point of 33 months is appropriate. The sentence is
H H
reduced to 22 months’ imprisonment to reflect the Defendant’s guilty plea.
I I
J 14. The sentences for the two charges are ordered to run J
concurrently. The total sentence imposed on the Defendant is 22 months’
K K
imprisonment.
L L
M M
Bina Chainrai
N Deputy District Judge N
O O
P P
Q Q
R R
S S
T T
U U
CRT20/6.7.2016/ DCCC 438/2016/Sentence
V V