HKSAR v. Le Chong Dien and Another

CACC000336/1997

C.A. No. 336 of 1997

(Criminal Appeal)

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

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Coram: The Hon. Mayo, J.A., Keith, J. & Yeung, J. in Court

Date of hearing: 24 October 1997

Date of judgment: 24 October 1997

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J U D G M E N T

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YEUNG J. giving the judgment of the Court:

1. The Applicant Mr. Le Chong Dien and Mr. Dam Van Khoa pleaded guilty to a charge of attempted robbery and a charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.

2. In respect of the first charge, they were sentenced to three years' imprisonment and in respect of second charge, they were sentenced to 15 months' imprisonment to run consecutively.

3. The Applicants are both Vietnamese national. They came to Hong Kong illegally shortly before they were arrested on the 4th April 1997. The victim of the attempted robbery charge was a plain-clothes police officer. At the material time, the Applicants were spotted under a flyover at the bicycle track near the Hong Kong Sport Institute. When the victim approached the two Applicants, the 1st Applicant produced a chopper and on realizing that the victim was in fact a police officer, the Applicants then fled. They were both arrested after a brief chase. Under caution the 1st Applicant, admitted that he intended to use the chopper to threaten the victim for money.

4. The judge was of the view that robbery offence committed by illegal immigrants were too prevalent and that a serious view had to be taken. He took into account the use of a chopper and he adopted a starting point of five years' imprisonment for the attempted robbery charge. He reduced it to three years because of the early guilty plea of the Applicants and their cooperation with the police after their arrest.

5. In respect of the immigration offence, the judge adopted a normal sentence of 15 months' imprisonment, the sentence laid down in R. v. So Man King & others [1989] 1 HKLR 142. The recent decision of Leong J. in R. v. Nguyen Quoc Thuan and other Mag. App. Nos. 338 and 391 of 1997, confirmed the observation that there should be no distinction between illegal immigrants from Vietnam and those from China. Both brought about social and economic impact to the society of Hong Kong and to draw any distinction would be artificial.

6. We respectfully agree with such a view.

7. We have considered the background of the case. We have taken into consideration the assertion by the Applicants that the sentences are too severe and their wish to return to Vietnam as soon as possible. We are of the view that the approach adopted by the judge is a correct one. The sentences in question, either individually or collectively cannot be said to be manifestly excessive or wrong in principle. The application must be dismissed.

Representation:

Mr. D.G. Saw, S.C. & Mr. Simon Tam, G.C. (DPP) for Respondent

Applicants, Le Chong Dien and Dam Van Khoa, acting in person.