HKSAR v. Vu Dinh Phong

HCMA001091/2000

HCMA 1091/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1091 OF 2000

(ON APPEAL FROM SPCC 6037/2000)

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Coram: Hon Lugar-Mawson J in Court

Date of Hearing: 28 November 2000

Date of Judgment: 28 November 2000

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J U D G M E N T

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1. The appellant, VU Dhin-phong, pleaded guilty before Mr John Glass, Permanent Magistrate, sitting at San Po Kong Magistracy on the 9 September 2000 to a charge of breach of a deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap. 115 and a charge of unlawfully remaining in Hong Kong without the authority of the Director of Immigration, contrary to section 38(1)(b) of the same Ordinance.

2. A duty lawyer at trial represented him at trial.

3. The facts were that on 8 September 2000, Emergency Unit police officers stopped a taxi carrying the appellant. He ran out of it. He was caught and subdued. He could not produce any proof of identity. A check was made and it was found that a Deportation Order, made on 6 November 1995, was in force in force against him. He had previously been deported from Hong Kong to Vietnam on 5 previous occasions in 1995, 1996, 1997, 1998 and 1999. The defendant admitted that he had sneaked into Hong Kong on board a boat on 8 August 2000 and that he was in contravention of the Deportation Order.

4. He admitted his criminal record, which showed three convictions for breach of a Deportation Order and three convictions for remaining in Hong Kong without authority of the Director of Immigration.

5. In mitigation, Mr Glass was told that the appellant was 32. He had no fixed abode and was unemployed in Vietnam. He had come to Hong Kong to find work as his father and mother depended on him. His plea of guilty was stressed and he asked for leniency.

6. Mr Glass took a starting point of three years imprisonment for charge 1 and then gave the appellant a one-third discount for his guilty plea. For charge 2, he also took a starting point of three years imprisonment and gave a one-third discount for the guilty plea. He found no other mitigating factors to reduce the sentences further. He considered the totality of the sentences and ordered that one year of the sentence in respect of charge 2 run consecutively with the sentence in Charge 1, and the other year to run concurrently, making a total of three years imprisonment for both charges. He did not consider that this case was appropriate for a suspended sentence or other alternative sentence. He considered immediate imprisonment his only sentencing option.

7. The appellant now appeals those sentences.

8. Mr Glass stated in his reasons for sentence that, whilst appreciating that it is settled law that a man should not be sentenced for his previous convictions, this was the appellant's sixth illegal entry into Hong Kong and that the earlier sentences clearly had no deterrent effect upon him. He also commented that each time the defendant was deported from Hong Kong it cost the government a great deal of money to repatriate him. And as the defendant was unemployed in Vietnam there was little chance of the government ever recovering these payments.

9. He reminded himself that that the maximum penalty upon summary conviction for both charges was 3 years imprisonment and the maximum penalty upon conviction on indictment for charge 1 was 7 years. He was of the view that it was the intention of the legislature that some defendants should receive the maximum sentence available to him of 3 years imprisonment. He was of the view that this case demanded the deterrence of the maximum penalty set by the legislature, because without such a sentence the appellant would simply return to Hong Kong once he had been repatriated.

10. Relying on the observations of Duffy J in R v Bui Due-tho, MA 903 of 1995 (unreported) that: 'It is obviously important that those in breach of deportation orders are seen to serve separate and distinct sentences for that offence.' he made the sentences partly consecutive, because the appellant had made special arrangements to sneak into Hong Kong knowing full well his entry would be in breach of the deportation order.

11. This morning it has been argued that the starting point of 3 years' for both offences was manifestly excessive and that Mr Glass erred in passing a partially consecutive sentence for the two charges. It has also been argued that Mr Glass placed an inappropriate degree of significance on the appellant's previous convictions when passing sentence. And that he erred in taking the view that the inability of the Appellant to shoulder the cost of repatriation is a legitimate aggravating feature in sentencing. And in all the circumstances the total sentence of three years for the appellant's two offenses was manifestly excessive.

12. I don't agree. Firstly, Mr Glass did not treat the cost of repatriation as an aggravating feature; his comment was directed at that being a matter that did not go to the appellant's mitigation. Secondly, there is no tariff for these two offences, the past cases cited in argument are no more than examples of sentences peculiar to the facts of those cases.

13. To put it bluntly, and as Mr Glass realised, this appellant is a persistent and contumacious offender against our immigration laws. He has come here illegally six times and he has been deported from Hong Kong once every year since November 1995. This time not only did he arrive here, but he was able to remain here for one month and he attempted to evade arrest. Previous sentences have not deterred him from coming and attempting to remain here. It is only by sentencing him to serve the maximum period of imprisonment permitted for the jurisdiction of the court in which he was tried that there can be any hope that he gets the message that he is not permitted to be here. If he offends again after his release the prosecuting authorities will be well advised to ensure that he is tried in the District Court where he can receive a far more severe sentence.

14. It follows from what I have said, that the sentences that Mr Glass imposed on the appellant are neither manifestly excessive, nor contrary to law or principle and his appeal is dismissed.

Representation:

Miss Lam Vinci, GC for HKSAR

Mr Patrick Szeto, assigned by DLA, for the Appellant