HKSAR v. Nguyen Bui Tuan

HCMA000159/2001

HCMA159/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 159 OF 2001

(On Appeal from TMCC205/2001)

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Coram: Hon Hartmann J in Court

Dates of Hearing: 20 April and 3 December 2001

Date of Handing Down Judgment: 18 December 2001

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J U D G M E N T

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Introduction

1.This is an appeal against sentence.

2.The appellant, a Vietnamese man aged 44, appeared before D.I. Thomas Esq., magistrate, on 18 January 2001. He was charged with four offences and pleaded guilty to each.

3.The first offence was one of possessing a forged identity card, contrary to section 7A(1) of the Registration of Persons Ordinance, Chapter 177. The second offence was one of using that forged identity card, an offence contrary to the same section of the same statute. The magistrate sentenced the appellant to 10 months imprisonment on both charges, those sentences to be served concurrently.

4.The third offence to which the appellant pleaded guilty was one of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully, contrary to section 38(1)(b) of the Immigration Ordinance, Chapter 115. The fourth (and final) offence to which the appellant pleaded guilty was one of breach of a deportation order, contrary to section 43(1)(a) of the Immigration Ordinance.

5.In respect of the third offence, the magistrate sentenced the appellant to 18 months imprisonment, ordering that this sentence be served consecutively to the 10 months imposed in respect of the first two offences. This made for a total of 28 months.

6.In respect of the fourth offence, the magistrate sentenced the appellant to 10 months imprisonment. He ordered that only six months of that sentence should be served consecutively to the sentences already imposed, the balance of four months to be served concurrently.

7.In the final analysis, therefore, the appellant was sentenced to a total of 34 months imprisonment. He has appealed that sentence.

8.Mr McGowan, who appeared on behalf of the appellant, has founded the appeal upon two bases. First, he has contended that the magistrate was wrong in principle to order that the sentences imposed for the third and fourth offences were to run, in part, consecutively to each other and fully consecutively to the sentences imposed for the first and second offences. Second, he has contended that, since the date of sentencing, humanitarian grounds have arisen which warrant a reduction in sentence.

A brief history

9.This appellant has received a number of prison sentences for seeking unlawfully to stay and work in Hong Kong. His first conviction was in January 1991; first for using a forged identity card and, second, for escaping from a detention centre. He was sentenced to an effective term of 10 months imprisonment and, upon completion of that sentence, returned to Vietnam.

10.Five years later, in March 1996, the appellant was convicted of possessing a forged identity card and of remaining in Hong Kong without authority. He was sentenced to an effective term of 15 months imprisonment.

11.Upon his release from jail, on 12 March 1997, the appellant was served with a deportation order effective for life and was returned to Vietnam.

12.However, later that same year he was again back in Hong Kong and in August 1997 was convicted of remaining here without the authority of the Director of Immigration. He was further convicted of breaching his deportation order. He was this time sentenced to an effective term of 15 months imprisonment.

13.On 16 January of this year, the appellant was again found in Hong Kong. He was stopped by a police officer and produced to him a forged identity card for which the appellant admitted paying HK$2,000. A work permit issued by a Hong Kong construction company was found on him. He admitted that he had used his forged identity card to obtain that permit.

14.As for his personal circumstances, the appellant is married, he and his wife being engaged in subsistence farming in Vietnam. He has two teenage children. When sentenced for the offences which are the subject of this appeal, the magistrate was aware that the appellant's wife suffered from heart disease and took this into account in assessing sentence.

15.It appears, however, that after the appellant had been sentenced, his wife's heart condition worsened and she had to be admitted to hospital where seemingly she has spent some period of time. A hospital report dated 18 May 2001 gives as the reason for her admission : 'heart disorder level III, complete confusion of heartbeat.' Although there is no suggestion that the wife's condition is terminal nevertheless her inability to work and the costs of medical treatment have seemingly placed the family in a dire position.

The quantum of the individual sentences

16.In HKSAR v. Chan Man Mo, HCMA No.1059 of 1999, Bokhary J, having reviewed earlier decisions, ruled that 15 months imprisonment after a plea of guilty would be appropriate for possession of a forged identity card if the offender was in Hong Kong illegally and had possession of the card 'for the purpose of obtaining employment or otherwise furthering his remaining in Hong Kong'.

17.In the present case, the appellant, who had used his forged identity card to obtain a permit to work for a local company, was sentenced to two concurrent terms of 10 months imprisonment; that is, for possessing the forged card and for using it. Those sentences are not criticized for being wrong in principle.

18.As for the third offence, that of remaining in Hong Kong without authority, guidelines were set by the Court of Appeal as long ago as 1989. In R. v. So Man King & Others [1989] 1 HKLR 142, the Court directed that an appropriate sentence following a plea of guilty should be one of 15 months imprisonment. If, however, the offender was a repeat offender there should be an upward adjustment. The guidelines in So Man King were essentially directed at offenders who came to Hong Kong from the Mainland. However, subsequent decisions have drawn no distinction between those from the Mainland and those from the Vietnam; see, for example, R. v. Nguyen Thi Tham, HCMA No.747 of 1996 in which Gall J said :

"....So Man King was aimed to cure a particular problem. At the time it was decided there was an ever-increasing influx of illegal immigrants from the Mainland. The question I must answer is whether or not it should apply also to the influx of illegal immigrants from Vietnam. It is clear that before these courts, there are a regular number of Vietnamese illegal immigrants who are second-time or third-time returnees to Hong Kong. In my view, the problems facing this territory from Vietnamese illegal immigrants are so akin to those that we have faced from Chinese illegal immigrants, that the principles enunciated in So Man King hold good for Vietnamese illegal immigrants. However, having said that, I would agree with Mr Justice Chan that there should be some slight difference given that the magnitude of the problem is less in these days than that which we faced from Mainland China in the days of So Man King. That being so, I would take a proper penalty after plea on the count of remaining in Hong Kong without the authority of the Director of Immigration to be one of 15 months' imprisonment. ...."

19.In the present case, the appellant had been convicted on two previous occasions for remaining in Hong Kong without authority : he was a repeat offender. Applying the So Man King principles, some upward adjustment was required. The appellant was sentenced to 18 months, a sentence which, in my view, in principle cannot be faulted.

20.In respect of the fourth offence to which the appellant pleaded guilty, that is, being in breach of a deportation order, sentences in recent years have ranged between about 12 and 15 months. In HKSAR v. Cheema Asghar Sajiad, HCMA85/2000, Beeson J held that an appropriate sentence, upon a plea of guilty, was one of 12 months. Reliance was placed on a line of authority going back to R. v. Corazon S. Duazo, HCMA1124/1996 in which Sears J held that a standard sentence, upon plea, should be 12 months.

21.However, in a recent judgment, HKSAR v. Do Thi Hue, HCMA873/2001, McMahon DJ noted that a person unlawfully in Hong Kong and prosecuted for an offence contrary to section 38(1)(b) of the Immigration Ordinance, upon plea, will normally receive a sentence of 15 months imprisonment, whereas an offender in breach of a deportation order, which for practical purposes necessarily means he is in breach also of section 38(1)(b), will in the normal course of events, upon plea, receive a lesser sentence of 12 months.

22.The Deputy Judge continued :

".... in a second line of authority represented by R. v. Talaw HCMA910/1996; R.v. Hoang Dinh Huy HCMA1530/1996 and HKSAR v. Pham Van Sien HCMA1127/1999, 15 months' imprisonment was held to be an appropriate sentence after plea for the offence of breaching a deportation order. In my judgment that is a sentence far more consistent with the realities and reason of the situation than the 12 months' imprisonment approved in the previous cases I have referred to. Indeed, one would have thought that breach of a deportation order could be said to be the significantly more serious offence, as it is an offence against an order directed particularly at the offender. That may well be why the court in HKSAR v. Luu Dinh Huy HCMA690/1997 imposed a sentence of 16 months' imprisonment for the offence.

That the legislature intended the offence of breach of a deportation order to be the more serious offence is perhaps also evident from the maximum penalty on indictment being seven years' imprisonment whereas so far as the offence of unlawfully landing and remaining in Hong Kong is concerned, the maximum sentence is three years' imprisonment. Accordingly, it seems to me that a sentencing magistrate could not be criticized for sentencing an offender who was in breach of a deportation order to a period in excess of 15 months' imprisonment after plea."

23.It is to be emphasized that a deportation order is made only after due deliberation at the highest Executive level. It is not made lightly and, in my judgment, is not lightly to be ignored. In terms of section 20 of the Immigration Ordinance it is only made if-

"(a) the immigrant has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than 2 years; or

(b) the Chief Executive deems it to be conducive of the public good."

24.In HKSAR v. Luu Dinh Huy, HCMA No.690 of 1997, it is clear that Lugar-Mawson DJ (as he then was) also took into account the inherent seriousness of a breach of a deportation order. Using plain language that brooks no ambiguity he said :

".... A Deportation Order when served on a person tells them in categoric terms that they are not wanted in Hong Kong and have no right to be here, and will not be allowed to be here. It must have been very apparent to the appellant that he had no right to be here, and yet, for his own purposes, he deliberately chose to flaunt the law. He cannot expect any sympathy from any magistrate or appeal judge if he is of that disposition. As I've said, he knew he wasn't allowed to be here and he deliberately chose to ignore that fact. I am of the view that, for that offence, even after a guilty plea, Mr Kelly was right to take a sentence of two years' imprisonment."

25.In the circumstances, I am satisfied that the line of reasoning adopted by McMahon DJ is correct in principle and should be applied. Accordingly, a sentence of 15 months' after a plea of guilty would, in the course of events, be appropriate for breach of a deportation order. For repeat offenders, as was made clear in HKSAR v. Luu Dinh Huy (supra) , a sentence of up to two years after a plea of guilty would not be wrong in principle.

26.The appellant in this case was a repeat offender. He had previously been convicted of breaching a deportation order in 1997. Yet he chose to return again in the knowledge that he would be breaching his deportation order for a second time. The magistrate sentenced this appellant, upon his plea, to 10 months imprisonment. In the light of what I have said that may be considered a lenient sentence.

Partially consecutive sentences imposed in respect of the third and fourth charges

27.On behalf of the appellant, Mr McGowan submitted that, as a general principle, consecutive sentences should not be imposed for offences arising out of the same transaction or incident unless there are exceptional circumstances. In the present case, he said, the third offence (remaining in Hong Kong unlawfully) and the fourth offence (being in breach of a deportation order) were intrinsically interlinked, the one being consequential upon the other. The gravamen of the offences was being unlawfully in Hong Kong, the same actus reus being required in each instance. That being so, he argued, the sentences imposed in respect of the third and fourth offences should have been ordered to be served concurrently. To order even a portion of the sentences to run consecutively to each other was not only wrong in principle, said Mr McGowan, but was also a failure to incorporate the totality principle into the assessment of sentence.

28.There are, of course, exceptions to this broad principle, the exceptions being dictated invariably by the requirements of policy. It has been noted on numerous occasions (in both criminal law and administrative law judgments) that Hong Kong is a small crowded place and yet it is a place which a great many people aspire to enter. Our legislature has acknowledged that Hong Kong's unique situation requires a highly restrictive policy of immigration, a policy that must, in the greater public good, be strictly policed.

29.In my judgment, the dicta of Lugar-Mawson DJ supra cannot be bettered. In light of the imperatives that bind Hong Kong's immigration laws, if a person subject to a deportation order nevertheless chooses to enter Hong Kong he does so in the knowledge that he is not simply entering unlawfully but is acting in breach of an executive order directed at him personally. Common sense dictates that that must add to his moral culpability. I believe that it is also legitimate to ask : what is the purpose of a deportation order if it serves no more deterrent purpose than any unlawful return?

30.It appears that in past cases different views have been expressed by judges of first instance hearing appeals. Mr McGowan referred, for example, to the dicta of my brother, Nguyen J in HKSAR v. Pham Van Sien, HCMA No.1127 of 1999, in which he said :

" In all the cases that Mr McGowan quoted, the sentences for the two offences appeared to have been concurrent in each case, apart from R v. Bui Duc Tho, MA903/1995 where Duffy J agreed with the Magistrate that the sentences should be consecutive because Duffy J said :

'It is obviously important that those in breach of Deportation Orders are seen to serve separate and distinct sentences for that offence. ....'

I take the view that because these offences arise from the same incident, namely, returning to Hong Kong after having previously been deported and entering Hong Kong without the authority of the Director of Immigration, the sentences for these two offences ought to be concurrent. ...."

31.With respect, I am unable to agree. I note that in another 1999 decision given at first instance - HKSAR v. Nguyen Van Hien, HCMA No.947 of 1998 - Jackson DJ (as he then was) followed the line of Duffy J when he said :

" In my view the offence of remaining in Hong Kong without authority is quite plainly a single offence but if the offender has come here in direct contravention of a deportation order then that is another offence and it is quite separate and distinct, and the learned Magistrate was perfectly entitled to view it as such and impose consecutive terms of imprisonment."

32.In the recent judgment of McMahon DJ to which I have earlier made reference (HKSAR v. Do Thi Hue), the Deputy Judge, after a careful consideration of earlier authorities, recognized that concurrent sentences will in most instances not be appropriate. In this regard he accepted that the concerns of the sentencing magistrate were well founded, the magistrate having expressed those concerns in the following terms :

".... an offence of unlawful remaining may well trigger an offence of being in breach of a deportation order, in my judgment sentences for these two offences should not run concurrently. In my judgment, sentences should distinguish between those who have merely entered Hong Kong unlawfully and those who have positively disobeyed an injunction not to return to Hong Kong. If concurrent sentences are passed the service of deportation orders is rendered an empty exercise and the intention of the legislature and executive rendered nugatory."

33.The Deputy Judge took the view that the proper approach in assessing sentence was not to ignore the factual nexus between the two offences but rather, in considering 'the overall culpability' of the offender, to determine to what extent the sentence should or should not be served concurrently. As he said :

".... His [the magistrate's] justified concern .... is properly met, in my judgment, by ordering the sentences imposed not to be served wholly concurrently but that some part be served consecutively so as to properly reflect the overall criminality of the appellant's offence."

34.As the Deputy Judge noted, this attempt to determine what I may loosely describe as an equitably 'enhanced overall sentence' was the approach approved by Woo J (as he then was) in HKSAR v. Nguyen Duy Trinh, HCMA No.1111 of 1999.

35.I note too that in a judgment handed down this month, Gill DJ adopted the same approach. The Deputy Judge said :

".... to enter Hong Kong in whatever manner in defiance of that order is a separate and distinct offence from illegal entry. The criminality is therefore enhanced warranting at least partly consecutive sentences."

He continued by saying :

" As a consequence, I find the magistrate's approach in making the sentences partly consecutive as he did was the correct one."

36.In the matter now before me, the magistrate, having sentenced the appellant to 10 months imprisonment for a breach of the deportation order, ordered that only six months of that sentence was to be served consecutively to the sentence imposed for being unlawfully in Hong Kong. I consider that to be an entirely correct approach in principle. Considering that the appellant had previously been convicted for breaching his deportation order, I do not see how the magistrate can be criticized for exercising his discretion to order that six months be served consecutively and four months concurrently. That appears to me to be a proper exercise of his discretion.

Sentences for the third and fourth offences being consecutively to the sentences imposed for the first and second offences

37.The first offence to which the appellant pleaded guilty was that of possessing a forged identification card, the second was making use of that card. In respect of both offences the magistrate sentenced the appellant to 10 months imprisonment, those sentences to be served concurrently. The sentences imposed for remaining unlawfully in Hong Kong and doing so in breach of a deportation order were ordered to be served consecutively to the first two sentences.

38.In his Statement of Findings, the magistrate said :

".... There is ample authority from the Court of Appeal that sentences for offences of illegal remaining should run consecutively to those for other offences. Accordingly, I ordered that the sentences for charge 3 should run consecutively to the sentences for charges 1 and 2."

39.On behalf of the appellant, Mr McGowan accepted that this may in general be true but argued that fully consecutive sentences should only be ordered when offenders who are unlawfully in Hong Kong commit offences which are distinct from those connected with remaining here. Thus offences of robbery or burglary, which manifestly are entirely separate from the offence of being here unlawfully, will attract fully consecutive sentences. But, he said, offences related to possession of identification documents are in reality so much part and parcel of the offence of being here unlawfully that they cannot be entirely distinguished from that latter offence. That being so, principles of 'totality' dictate that there should be a consideration of overall culpability. In the result, submitted Mr McGowan, at least a portion of the sentences imposed for the first two offences should have been ordered to run concurrently with the sentences imposed for the second two offences.

40.In support of his submissions, Mr McGowan referred to R. v. Chan Wun Sang and another [1993] 1 HKCLR 46 in which the Court of Appeal accepted the principle that, if the use of a forged identity card is merely for the purpose of representing that the holder has the right to reside in Hong Kong, then it would be appropriate to order that the sentence imposed for the offence be served concurrently with the offence of remaining here unlawfully. However, the court emphasized that use of the card may amount to an aggravating feature.

41.In the matter now before me, the appellant had used his forged identity card to obtain some sort of work permit with a local construction company. That clearly was an aggravating feature which warranted an order that part of the sentence imposed for the use of the card should be served consecutively to the sentences imposed for being here unlawfully and in breach of a deportation order. It is, however, Mr McGowan's complaint that the magistrate ordered the full sentence to be served consecutively not merely a portion assessed by considering the appellant's overall culpability.

42.In principle, Mr McGowan may be correct. But factually what cannot be ignored is that the appellant in this case has two previous convictions concerned with the possession and/or use of forged identification documents. As Chan J (as he then was) commented in R. v. Tam Simon, HCMA Nos.489 and 490 of 1996 :

" With regard to the criticism that the learned Magistrate had punished the Appellant twice because he was a repeat offender I do not think there is any substance in it. There are clear authorities to the effect that in a case where a person had a history of multiple offences of a similar nature in the past, the court is entitled to take a higher starting point. This is not to say that a defendant is to be punished twice. It is simply that while the defendant had been punished for the past offences, he clearly has not learned any lesson and a greater deterrent sentence may be necessary to be effective."

43.On that basis I am satisfied that the magistrate, in his discretion, was entitled to conclude that the appellant's overall culpability did not warrant an order that any portion of the sentences imposed for the first and/or second offences were to be served concurrently with the sentences imposed for the third and/or fourth offences.

Subsequent humanitarian grounds

44.It is not disputed that, as an act of mercy, this Court does have the power to reduce the appellant's sentence for pressing humanitarian reasons which have arisen after sentence was passed. As to the principle, in R. v. Kwok Hau Ching, HCMA No.389 of 1994, Keith J (as he then was) had this to say :

"In Liu Chi Ping (AR1/90), the Court of Appeal took the view that humanitarian considerations could not be found in cases where a relative of the illegal immigrant, even a close relative, had already fallen ill by the time the illegal immigrant came to Hong Kong. However, in many cases since then, it has been observed that the position may be different where some unexpected disaster, such as the severe illness of a close relative of the illegal immigrant, occurs after the immigrant has arrived in Hong Kong. In such cases, a shorter sentence, or even a suspended term, might be appropriate." [my emphasis]

45.But while the jurisdiction exists, the authorities placed before me reveal that it is only to be exercised sparingly and in circumstances where, to employ the words of Keith J, there has been some form of unexpected disaster.

46.In the present case, the appellant knew that his wife had an illness of the heart before he returned (yet again) to Hong Kong. He was therefore not entirely ignorant of her frailty. It is true that her condition has subsequently worsened, apparently quite severely. But, as I said earlier in this judgment, there is no evidence that she is in terminal decline and that the appellant must get back to Vietnam now if he hopes to see her alive. There are clearly medical facilities in the area. In addition, there appear to be family members able to render some assistance to the appellant's wife and children. For example, a letter placed in evidence in the appeal commences (in translation) :

"Tuan, my dearest brother,

....

For everything, stop thinking about anything; otherwise, it would affect your health. Although your wife's illness is a threat to her life, the family has made every effort to treat her, but the illness has not improved. At home, your two children have been taken care of by brother Thu. ...."

47.In the circumstances, I do not consider this to be an appropriate matter in which to exercise the court's jurisdiction to alter the sentence of the appellant on humanitarian grounds.

48.For the reasons given, this appeal must be dismissed.

Representation:

Mr James McGowan, instructed by Legal Aid Department, for the Appellant

Mr Paul Ho, SGC of Department of Justice, for the Respondent