HKSAR v. Nguyen Van-tung

HCMA 181/2018

[2018] HKCFI 1659

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 181 OF 2018

(ON APPEAL FROM ESCC 2997 OF 2017)

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JUDGMENT

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1.The Appellant is a Vietnamese national in his mid-twenties and of previous good character. On 28 October 2017 he stole four sweaters,two jackets and three pairs of trousers at a shop. He was intercepted outside the shop at which he stole those things. It then came to light that he was remaining in Hong Kong without the authority of the Director of Immigration after having landed here unlawfully.

2.Two charges were brought against the Appellant in the Magistrates’ Court.  Charge 1 was of theft, contrary to section 9 of the TheftOrdinance (Cap 210).  Charge 2 was of remaining without authority after having landed unlawfully, contrary to section 38(1)(b) of the Immigration Ordinance (Cap 115).

3.On 27 November 2017 the Appellant pleaded guilty on the theft charge, and was sentenced to 4 months’ imprisonment on that charge.

4.Non-refoulement proceedings delayed matters on the charge of remaining without authority after having landed unlawfully.  It was notuntil 26 March 2018 that the Appellant pleaded guilty to, and was sentenced on, that charge, it being said on his behalf that he wanted to go home as soon as possible.  He was sentenced to 14 months’ imprisonment on that charge.  He appeals against that sentence, complaining that it is too severe.

5.The sentence on the charge of remaining without authority after having landed unlawfully was passed by Mr Peter Law, who was not the Magistrate who had sentenced the Appellant on the theft charge.

6.As to why he passed a sentence of 14 months’ imprisonment, this is what Mr Law said in his Reasons for Sentence:

“ 4. If I were to sentence him on both charges at the same time, I would consider a partly concurrent and partly consecutive sentence. I would consider a starting point of 6 months and reduced to 4 after a plea was appropriate for a equipped and premeditated shop theft. For Charge 2, I would adopt the principle as laid down in R v SO Man King (1989) 1 HKLR 142 and took 15 months on a plea. I would also order 1 month be concurrent, made it to a total of 18 months.

5. On 26 March 2018, upon my sentence on him for Charge 2, although the Defendant had already completed his 4 months from charge 1 and the partly concurrent and partly consecutive totality concept sounded academic; I took a practical approach to reduce his 15 months to 14 thus to make it to a total of 18 in order to achieve that aim.  Apart from his guilty plea discount, I could not think of any justification that can trigger for any further deduction.”

7.The sentence which Mr Law passed is within the appropriate range.

8.In a document headed “Letter of Appeal” and dated 8 May 2018, the Appellant says that the duty lawyer who represented him in the Magistrates’ Court told him that he would receive a sentence of 11 months’ imprisonment by way of a deduction from 15 months of the 4 months which he had already served for theft. Assuming that the duty lawyer said that, he would have been wrong in saying it.

9.According to what the Appellant says in the Appeal Letter, what the duty lawyer said about a sentence of 11 months’ imprisonment was said after he had already indicated that he would plead guilty.  So it would not have affected his decision as to the plea to tender.

10.Assuming that the duty lawyer had told him that he would receive a sentence of 11 months’ imprisonment, would the Appellant have a legitimate sense of grievance against receiving a sentence of 14 months’ imprisonment?  He would of course be disappointed, but that does not mean that he should be treated as having a legitimate sense of grievance.  Just because a person receives a sentence heavier than the one which his lawyer said would be passed, it does not necessarily mean that he should be treated as having a legitimate sense of grievance.  In the circumstances of the present case, I do not think that the Appellant would have a legitimate sense of grievance even assuming that his lawyer had told him that he would receive a sentence of 11 months’ imprisonment.

11.I find no proper basis on which to interfere with this sentence.

12.Accordingly, the appeal is dismissed.

Mr Prakash L Daryanani, SPP of the Department of Justice, for the Respondent

The Appellant appeared in person