HKSAR v. Luu Ngoc Hanh (also known as Luu Dinh Hanh)

Case No.DCCC 850/2015

Court

District Court

Date—

Judge—

Case Document

100%Judiciary

DCCC 850/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 850 OF 2015

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	HKSAR
	v.
	LUU Ngoc Hanh (also known as LUU Dinh Hanh)
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Before:

HH Judge E. Yip

Date:

26^th January 2016 at 14:52 am

Present:	Mr Frederick CHUNG,Senior Public Prosecutor, of the Department of Justice, for HKSAR
	Mr CHEUNG Yaddy, of M/s Yaddy Cheung & Co assignedby DLA for Defendant

Offence:	[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)

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Reasons for Sentence

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Charges

1.The Defendant pleads guilty to breach of deportation order (1^st Charge) and unlawful remaining in Hong Kong (2^nd Charge).

Facts

2.On 6 November 2014, the Defendant surrendered himself to the Immigration Department in relation to certain offences involving his illegal status. Under caution, he admitted that he had sneaked into Hong Kong from Mainland China on 20 October 2014. He said that he had come to Hong Kong to seek life protection and he knew that he was subject to a deportation order. He raised a non-refoulement claim in Hong Kong on the same day.

3.Further enquiries revealed that a deportation order dated 4 October 2007 was made against him. The Immigration Department confirmed that the said order was still in force. In other words, he remained in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully.

4.As he failed to return a completed non-refoulement claim form within the prescribed time limit, the said claim was deemed to have been withdrawn on 30 April 2015. Afterwards he provided no further information regarding the said claim.

Personal background and mitigation

5.The Defendant is 39 years old, a casual worker in Vietnam. His family is in Vietnam. He has a number of criminal convictions, including 4 for breach of deportation order (sentenced from 2008 to 2011) and 5 for unlawful remaining (sentenced from 2006 to 2011).

Sentencing considerations

6.An illegal immigrant shall receive 15 months’ imprisonment on a guilty plea and a repeat offender shall receive a higher sentence (The Queen v So Man-king and Others [1989] 1 HKLR 144).

7.The starting point for a first offender for breach of deportation order is customarily 27 months (HKSAR v Gabriel Malou Lantin [2004] HKCU 1065) and a repeat offender shall receive a higher sentence (HKSAR v Nguyen Tuan Anh [2004] HKCU 44; HKSAR v Pham Van Tuan [2011] HKCU 325; HKSAR v Ta Dinh Son CACC 348/2013).

8.The dual offences of unlawful remaining and breach of deportation order attract concurrent sentences (HKSAR v Bui Van Kai CACC 175/2012; HKSAR v Ta Dinh Son CACC 348/2013).

Sentencing this Defendant

9.Given his recidivism for both offences, I have to pass a more deterrent sentence. I take a starting point of 3 years for the breach of deportation order. I reduce it by one-third due to his plea of guilty. The sentence is 2 years. Based on his guilty plea, I adopt a sentence of 2 years for his unlawful remaining.

10.There are no other mitigating factors. The sentences shall be concurrent. In other words, his overall sentence is 2 years.