HKSAR v. Trinh Thi Mai Appellant

HCMA 470/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 470 OF 2016

(ON APPEAL FROM STCC NO 1659 OF 2016)

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JUDGMENT

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1.The appellant pleaded guilty to one count of remaining in Hong Kong without the authority of Director of Immigration after having landed unlawfully in Hong Kong (“illegal remaining”) and one count of breach of deportation order before a magistrate. They are respectively Charges 1 and 2 in the case. She was sentenced to 18 months imprisonment on each charge. Both sentences are to run concurrently, making a total of 18 months imprisonment.

2.The appellant appeals against the sentences only.

Facts admitted

3.The appellant is a Vietnamese female.  On 13 April 2015 she surrendered to the Immigration Department for having sneaked into Hong Kong.  Investigations revealed that she was subject of a deportation order issued against her on 20 June 2008, prohibiting her from being in Hong Kong for life.  The deportation order had been served on her on 2 July 2008 and she had been deported to Vietnam the next day.

4.A record of interview was obtained from the appellant on 13 April 2015 and she admitted under caution that she had sneaked into Hong Kong from the Mainland on 1 April 2015 without going through immigration clearance and she was aware that she was subject of a deportation order prohibiting her from being in Hong Kong for life.

Grounds of Appeal

5.The appellant submits that the sentence is too severe and that she has already served an imprisonment term of 15 months for the offences of using a forged identity card and taking employment while being a person in respect of whom a deportation order is in force (“illegal employment”).

Discussion

6.The appellant is aged 45 and has 6 previous convictions including 2 convictions for illegal remaining for which she was sentenced to 12 months imprisonment suspended for 2 years and 15 months imprisonment respectively in 1999 and 2007.

7.The appellant repeats in the appeal hearing what she said in mitigation in the lower court.  She says that she owes debts of substantial amount in Vietnam and has come to Hong Kong to apply for non-refoulement.  Her daughter who is aged 6 suffers from serious kidney disease and is in critical condition.  She needs to earn money in Hong Kong to pay for the medical expenses, but now wants to return to Vietnam as soon as possible to look after her ailing daughter.

8.The magistrate considered her mitigation and the authorities of R v So Man King [1989] 1 HKLR 142 and HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762 before coming to the sentences imposed on the appellant.  In the former it was said that in the absence of humanitarian consideration or other strong mitigation factors, such as voluntary surrender to authority, the normal sentence for illegal remaining after plea of guilty is 15 months imprisonment and it was appropriate to increase such sentence to 18 months imprisonment for a repeated offender.  In the latter it was said that for breach of a deportation order a sentence of 18 months imprisonment on a plea could not be criticised.

9.As the appellant has 2 previous convictions of illegal remaining which took place in 1999 and 2007 respectively the magistrate adopted a starting point of 27 months imprisonment for Charge 1 and reduced it 18 months imprisonment to give credit for the plea of guilty of the appellant. For Charge 2 the magistrate followed the decision of Cortez Emily Bisoy and imposed a sentence of 18 months imprisonment.  After considering the decision of the Court of Appeal in HKSAR v Bui Van Khai [2013] 2 HKLRD 471, the magistrate ordered the 2 sentences to run concurrently.

10.It is the view of the court that the sentence for each individual charge and the overall sentence reached by the magistrate are neither excessive nor wrong in principle and cannot be faulted.

11.The appeal would have been totally unmerited has it not been made known to the court that the appellant had served a total sentence of 15 months imprisonment for the offences of using a forged identity card and illegal employment which are closely connected with the 2 offences forming the subject-matter of the present appeal.

12.According to the chronology of events helpfully submitted to the court by the respondent, the appellant, after surrendering herself to authority in April, 2015, lodged a non-refoulement claim.  Pursuant to the prosecution policy, prosecution of the appellant for illegal remaining and breach of deportation order was deferred and the appellant was released on recognizance, pending determination of her non-refoulement claim.

13.In July 2015 the appellant was arrested for the aforesaid offences of using a forged identity card and illegal employment for which she was sentenced to a total of 15 months imprisonment.  Subsequent to the refusal of the non-refoulement claim of the appellant by the Immigration Department in April 2016 and the abandonment of the appeal against the order of refusal by the appellant in August 2016, the appellant was prosecuted for the offences of illegal remaining and breach of deportation order.  She eventually pleaded guilty to the offences and was, on 3 August 2016, sentenced to a total of 18 months imprisonment, the subject-matter of the present appeal.  By that time she had already served the 15 months imprisonment.

14.Although the offences of using a forged identity card and illegal employment took place while the appellant was on recognizance they are closely connected with the offences of illegal remaining and breach of deportation order.  If the 4 offences had been dealt with together it is of no doubt that the appellant would not have been sentenced to 33 months imprisonment, a sentence the appellant will now have to serve for these offences. This is obviously unfair to the appellant.

15.Through no fault of the magistrate, the above chronology of events and the nature of the 15 months imprisonment were not brought to her attention.  Had this been done she surely would have taken them into consideration in passing the sentence.  The court is of the view that an overall sentence of 12 months imprisonment in the present case is sufficient to reflect the capability of the appellant.

Conclusion

16.The appeal is allowed to the extent that the sentences of 18 months imprisonment for the offences of illegal remaining and breach of deportation order are both reduced to 12 months imprisonment which are to run concurrently.  The appellant is to serve a total term of 12 months imprisonment.

Ms HO May Yu Lily SPP of Department of Justice, for the respondent

The appellant in person, present