HKSAR v. Hoang Van-van

HCMA000622/1997

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 622 OF 1997

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Coram: Deputy Judge Beeson in Court

Date of hearing: 20 August 1997

Date of judgment: 20 August 1997

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J U D G M E N T

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1. The appellant was convicted after trial of two offences, one of Breach of Deportation Order for which the sentence was 15 months imprisonment and the second charge of Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong for which he was sentenced to 18 months imprisonment. Nine months of the sentence on Charge one was ordered to be consecutive to the sentence on Charge two. The Magistrate in considering the sentence acknowledged that the Appellant was not entitled to credit for either a plea of guilty, this being a conviction after trial, or for a clear record. The Defendant had two previous convictions involving of forged/false/handulently obtained of documents in 1993; a charge similar to the second charge in 1995, as well as a breach of deportation order and then in February 1996 a further breach of deportation order and a charge of unlawfully remaining. The Magistrate considered the guidelines in So Man King and also considered recent cases where the judges had reviewed the question of whether a distinction should be made between Vietnamese and Chinese illegal immigrants.

2. In the opinion of the judges and in the practice of the magistrates there is no appropriate distinction between these two categories of person. I have been referred to the case of Hoang Dinh-huy M.A. 1530/1996, in which Leong J. examined the cases on appeal and concluded that there should be there no distinction for the purpose of sentencing, whether illegal immigrants are Chinese or Vietnamese.

3. The relevance of this case is that it was decided after the cases considered by the Magistrate in her Reasons for Sentence. The question was also considered whether or not a deterrent sentence should be imposed on a person who had been prohibited from entering Hong Kong and Leong J. concluded that it was justified.

4. In this case, the Magistrate decided to make the sentence partially concurrent and partially consecutive, to take account of the fact that there were two separate offences. I am satisfied, having considered the cases, that the Magistrate correctly considered the guidelines, and that the length of the individual sentences was correct. In respect of the first count the breach of deportation order, I note that there is a three year maximum for this sentence and the sentence of 15 months is correct.

5. In respect of the second offence, So Man King indicates that for a second offence against section 38(1)(b) Immigration Ordinance a sentence of 18 months is proper. The magistrate clearly considered that wholly concurrent sentences would have been in appropriate and would not have had sufficient deterrent value. This is after all the Appellant's third breach of Deportation Order. Previous sentences do not appear to have deterred him. Although I consider that on the authorities the overall sentence might be slightly too high I do not consider that it is so manifestly excessive that I should interfere the Magistrate's sentencing discretion and I dismiss this appeal against sentence.

Representation:

Mr. W.S. Cheung, DPGC for D.P.P.

Hoang Van Van, Appellant , in person.