HKSAR v. Luu Dinh Duong

HCMA 464/2018

[2019] HKCFI 351

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 464 OF 2018

(ON APPEAL FROM WKCC NO 3501 OF 2018)

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J U D G M E N T

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1.The appellant faced three charges.  The 1^st and 2^nd charges were for the dealing with dutiable goods, contrary to section 17(1) of the Dutiable Commodities Ordinance; and Charge 3 was for a count of establishing or joining in any business while subject to a deportation order, contrary to section 38AA(1)(b) and 38AA(2) of the Immigration Ordinance.

2.On 5 September 2018, the unrepresented appellant pleaded guilty to all the three charges before the Acting Principal Magistrate (“the magistrate”) of the West Kowloon Magistrates’ Court.  The appellant was then sentenced to imprisonment of 2, 6 and 18 months respectively and they were to be served concurrently, but consecutive to the sentence he was serving for a dangerous drugs case.

3.The appellant filed notices of appeal against both his conviction and sentence.  In today’s hearing, the appellant confirmed that he would withdraw the appeal against the conviction of the three charges.  He also withdrew the appeal against the sentences of Charges 1 and 2.  Therefore, the only matter I have to deal with in this appeal is the appeal against the sentence on Charge 3.

THE FACTS

4.The magistrate set out the facts in her statement of findings as follows:

“2. At around 0715 hours on 6 August 2018, the defendant was found arranging illicit cigarettes for sale at place of offence A (Charge 2, location A) and place of offence B (Charge 1, location B), respectively. 2,300 sticks of illicit cigarettes were found at location B, while 8,600 sticks of illicit cigarettes were found at location A.

3. The defendant was a returned deportee. A deportation order for life was issued against him on 11 March 2008. The deportation order was served upon him and he was deported to Vietnam on 10 April 2008. Subsequently, the defendant entered Hong Kong again illegally. He was arrested on 29 November 2011. At the material time, he was released on Immigration recognisance.

4. At the time of interception the defendant admitted he was managing the cigarettes at the scene for sale. He bought the cigarettes at $7 per package and intended to sell at $10 per package.

5. On the material day, the defendant, being a person in respect of whom a deportation order is in force, was found to have established a business of selling cigarettes at Sham Shui Po.”

5.The appellant is a national of Vietnam.  He has seven previous convictions, including one for possession of dangerous drugs, which was committed after the subject offences, for which he was then serving a prison term.  In mitigation, the unrepresented appellant only said he asked for leniency.

6.The appellant had not filed any specific ground of appeal.  Today, again, he only asked for leniency.

CONSIDERATION

7.The magistrate correctly applied the guidelines in Usman Butt with the tariff of 15 months’ imprisonment after plea.

8.The magistrate also properly took into account the appellant’s two previous breaches of a deportation order and enhanced the sentence to 18 months.  In my judgment, the sentence of 18 months’ imprisonment was neither wrong in principle nor manifestly excessive.

9.The magistrate fairly and properly ordered concurrent sentences for the three charges based on the totality principle.  It is correct for her to order the sentences to run consecutive to the sentence he was serving for the possession of dangerous drugs, which was entirely a separate and distinct matter.

CONCLUSION

10.In my judgment, the total sentence imposed on the appellant was neither wrong in principle nor manifestly excessive.  For the reasons given, the appeal against the sentence on Charge 3 must be dismissed.

Mr Ivan Cheung, SPP of the Department of Justice, for the respondent

The appellant appeared in person