HKSAR v. Pham Van Cong also known as Fan Man Kung

DCCC 932/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 932 OF 2014

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Reasons for Sentence

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1.The defendant has pleaded guilty to two charges today: firstly, breach of a deportation order, contrary to section 43(1) of the Immigration Ordinance; and a 2nd charge, remaining in Hong Kong without the authority of the Director of Immigration, having landed unlawfully. That is contrary to section 38 of the same ordinance.

2.The defendant has agreed the facts of the case, and these facts show that on 17 September 2014, the defendant was in Sham Shui Po.  He was intercepted by a Special Police Constable, who required proof of identity.  The defendant failed to produce any proof of identity and admitted he had come to Hong Kong illegally by hiding in the bottom of a truck in Shenzhen two days previously.

3.He was arrested, and made further admissions that he had entered China from Vietnam with his Vietnamese passport on 13 September 2014.  He had lost that passport, and entered Hong Kong from Shenzhen by hiding at the bottom of a truck.  The defendant said he came to Hong Kong to receive medical treatment.

4.The defendant’s fingerprint was verified.  He was found to be a person for whom a deportation order dated 21 February 2001 was in force.  The defendant was deported under that order on 17 May 2001.  The defendant had breached that deportation order five times, and was deported in the years 2002, 2004, 2006, 2012 and 2014.

5.The defendant’s antecedents have been admitted. He is a 38‑year-old male from Vietnam.  He achieved secondary school level in Vietnam.  The defendant is admitted to be a drug addict.  He has other medical problems.

6.The defendant’s criminal record shows he has 12 previous court appearances dating between 1999 and 2016.  He has six previous convictions for the offence of remaining in Hong Kong without the authority of the Director of Immigration and five previous convictions for the offence of breach of deportation order.  For both of these offences, the defendant has received sentences ranging up to 21 months’ imprisonment. The defendant’s longest sentence was in 2007 for the offence of robbery, when he received a sentence of 42 months’ imprisonment.

7.In mitigation, the defendant says that he pleads for leniency.

8.In sentencing the defendant, I must bear in mind firstly that he has entered pleas of guilty to these charges, and secondly, that in respect of each of the offences to which he has pleaded guilty, he is a repeat offender.  This will be the defendant’s sixth conviction for breach of deportation order and his seventh for remaining in Hong Kong.

9.In the case of HKSAR v Tu Dinh Son CACC 348/2013, the Court of Appeal said that a starting point for sentence of 4 years’ imprisonment was appropriate for a person who had committed a seventh breach of deportation order.  Also, in respect of the charge of unlawful remaining, for a first offender of clear record, after trial the normal sentence would be one of 15 months’ imprisonment, but that is naturally subject to enhancement due to the repetition of the offence.

10.In respect of this defendant, having regard to his previous record of offending in respect of the 1st charge - that is, breach of deportation order - I will adopt a starting point of 45 months’ imprisonment, which will be reduced to 30 months’ imprisonment to reflect the defendant’s plea of guilty.

11.In respect of the 2nd charge, which represents the defendant’s seventh conviction for unlawful remaining, I will adopt a starting point of 33 months’ imprisonment and reduce that to 22 months’ imprisonment for the defendant’s plea of guilty.

12.These offences arise out of the defendant’s unlawful presence in Hong Kong.  I shall order that the sentences be served concurrently, one to another, to a total of 30 months’ imprisonment.