HKSAR v. Tran Van Duy

DCCC 402/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 402 OF 2016

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Reasons for Sentence

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1.The defendant has entered pleas of guilty to three charges. They are breach of deportation order, remaining in Hong Kong without the authority of the Director of Immigration and also possession of an offensive weapon a public place.

2.The defendant has admitted the facts of the case and I have convicted him of those offences.

3.Those facts show that the defendant was arrested as a result of an anti-burglary patrol on rooftops in Sham Shui Po.  This happened on 10 March 2016.  The defendant was seen looking into a flat on the rooftop of a building.  The defendant was intercepted and searched by the police.  He was found to be carrying a knife with a blade of 9.5 centimetres which was in his jacket pocket.

4.The defendant was subsequently interviewed.  He said he carried the knife for self-defence, that he was subjected and he knew that he was subjected to a deportation order for life.  He had smuggled himself into Hong Kong because he owed a debt in Vietnam.  It was later found that the deportation order on the defendant was issued on 9 May 2005 and he had been deported to Hanoi on four occasions from 2005 to 2013. 

5.The defendant’s antecedents show he is aged 31 years old and had Form 3 standard education in Vietnam.   His criminal record shows four previous appearances in court.  He has a number of convictions for remaining in Hong Kong and also for breach of a deportation order.  He has three previous convictions for breach of a deportation order, and the first being in 2005 where he received 18 months’ imprisonment, then in 2008 21 months’ imprisonment, and then in 2011 24 months’ imprisonment.

6.The defendant has previous convictions for remaining in Hong Kong.  His first offence was committed in 2003 when he received a sentence of 15 months’ imprisonment.  The second in 2005 when he received 18 months’ imprisonment.  The third in 2008 when he received 21 months’ imprisonment, and finally 2011 when he received a sentence of 24 months’ imprisonment for that. 

7.In terms of mitigation, the defendant repeats that he came to Hong Kong because he had incurred a debt in Vietnam.  He owed a substantial amount of money in Vietnam.   He came to Hong Kong to escape from his debt.  Also his wife had come here to claim as a Hong Kong torture claimant although his wife had abandoned that torture claim. 

8.The defendant also says that he voluntarily surrendered and the knife was for self-defence only. 

9.As far as the sentence to be imposed is concerned, there are guidelines from appellate authority in respect of both the offence of breach of a deportation order and also remaining in Hong Kong.

10.As far as the breach of deportation order is concerned, a first offender for this offence can expect a starting point for sentence in the region of 27 months’ imprisonment.  Authority for that to be HKSAR v Ta Dinh Son.  However, in this case, this is the fourth time the defendant has committed this offence, so an enhancement to that sentence or starting point of sentence could be expected.  In the case of Joned Asri, the Court of Appeal adopted a starting point of sentence of 36 months in the case where it had been a fourth offence of breach of a deportation order.

11.Although the defendant is said to have voluntarily surrendered, the repetition of this offence persuades me that the appropriate starting point in respect of the 1st charge should be one of 36 months’ imprisonment.  After deduction of one-third for the defendant’s plea of guilty, that will lead to a sentence of 24 months’ imprisonment. 

12.On the 2nd charge, the defendant again has a number of previous convictions for the offence of remaining in Hong Kong.  I consider that there should be an enhancement from the normal sentence of what would be for a first offender of 15 months’ imprisonment after plea. Accordingly, after deduction for the defendant’s plea of guilty, the sentence on the 2nd charge would be one of 21 months’ imprisonment. 

13.On the 3rd charge, possession of an offensive weapon in a public place, I would adopt a starting point of sentence of 9 months’ imprisonment and reduce that to 6 months’ imprisonment for the defendant’s plea of guilty. 

14.I must now consider the overall proper total sentence.  The most recent position is the offences on the 1st and 2nd charge are normally served concurrently, and I will accordingly order that the 1st and 2nd charge is to be served concurrently to each other. 

15.The third offence does constitute a separate and identifiable offence, so some element or all of it can be served consecutively.   In order to achieve the correct overall totality of sentence, I shall order that 3 months of the 3rd charge be served consecutively to the charges 1 and 2, and the balance concurrently.  This leads to an overall total sentence for the three offences of 27 months’ imprisonment.