HKSAR v. Vu Van Viet

DCCC 354/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 354 OF 2017

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Reasons for Sentence

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Charges

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

Facts

2.There was a deportation order in respect of the Defendant issued on 10/12/2010 and served on him on 28/12/2010, after which he was deported to Vietnam.  He was prohibited from being in Hong Kong for life.  

3.On 14/2/2017, he surrendered to the Immigration Department.  Under caution, he admitted that he was subject to the deportation order but sneaked into Hong Kong the day before from the Mainland by hiding under a truck. 

Sentencing considerations

4.For a first offender of unlawful remaining, the sentence after a timely plea of guilty is 15 months (R v So Man-king [1989] 1 HKLR 142).

5.A starting point of 27 months for a first offender of breach of deportation order is regarded in line with authorities (HKSAR v Gabriel Malou Lantin [2004] HKCU 1065).    

6.The offences of unlawful remaining and breach of deportation order usually feature the same underlying criminality for which concurrent sentences are appropriate (HKSAR v Pham Van Tuan [2011] HKCU 325; HKSAR v Bui Van Khai [2013] 2 HKLRD 471; HKSAR v Ta Dinh Son [2014] 3 HKC 529). 

Mitigation

7.He is 47 years of age, a Vietnamese citizen.  He had 4 records for unlawful remaining, the earliest in 4/2010 and the latest in 2/2015.  He had 3 records for breach of deportation order, the earliest in 3/2011 and the latest in 2/2015. 

8.Mr Ip relies on the case of HKSAR v Joned Asri CACC 345/2012 to suggest an increased starting point of 36 months for the present fourth breach of deportation order. I agree with his suggestion. 

Sentencing the Defendant

9.In the absence of aggravating factors, it ought to have been 15 months for the 1^st Charge after his timely plea of guilty.  As it is his fifth record for unlawful remaining, I add 6 months to it for more deterrence.  The sentence is 21 months. 

10.The starting point for the 2^nd Charge is 36 months.  After the one-third discount for his timely plea of guilty, the sentence is 24 months. 

11.The sentences shall be concurrent.