HKSAR v. Nguyen Duy-trinh

HCMA001111/1999

HCMA1111/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1111 OF 1999

(ON APPEAL FROM ESCC 3090/1999)

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Coram: Hon Woo J in Court

Date of Hearing: 29 December 1999

Date of Judgment: 29 December 1999

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J U D G M E N T

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1. The appellant was convicted on his own plea of two offences :

(1) breach of deportation order, contrary to s.43(1)(a) of the Immigration Ordinance, Cap.115; and

(2) remaining in Hong Kong without the authority of the Director of Immigration, contrary to s.38(1)(b) of the Immigration Ordinance.

2. He was sentenced by the Magistrate, Mr Candy, to 15 months' imprisonment for the first offence and 15 months' imprisonment for the second offence. The Magistrate ordered five months of the sentence for the second charge to run concurrently with the sentence for the first charge. That means the appellant has to serve a total of 25 months' imprisonment. It is against these sentences that the appellant now appeals.

3. The only ground of appeal set out in the Notice of Appeal is that the sentences are too severe.

4. In the Reasons for Sentence, the Magistrate said that the appellant was well aware of the gravity of his offences and yet he chose to return to Hong Kong after a deportation order made on 19 January 1998 had been served on him, and after he had been removed from Hong Kong in May 1998. The Magistrate therefore considered the appellant to be a persistent offender and took 18 months of imprisonment as the starting point for the first offence. Taking into account the guilty plea, the Magistrate reduced that sentence to 15 months and proceeded to impose that sentence on the appellant. The Magistrate also took into account the case of R v. Talaw, HCMA 910/1996 (25 October 1996, unreported) as well as the case of R v. So Man King [1989] 1 HKCLR 142 to pass the sentence of 15 months for the first offence and a similar sentence of 15 months for the second offence. He ordered five months of the sentence for the second offence to run concurrently with the sentence for the first offence.

5. I am not able to discern any mistake made by the Magistrate. According to Talaw's case where the appellant pleaded guilty to the offence of breach of a deportation order, Keith J. (as he then was) opined that a sentence of 15 months' imprisonment was appropriate. Similarly in this case, the sentence of 15 months for the first offence is nothing other than appropriate. According to So Man King's case, a sentence of 15 months for the offence of unlawfully remaining in Hong Kong is also appropriate. The Magistrate had already fully taken into account the totality of the sentences in making five months of the sentence for the second offence to run concurrently with the sentence for the first offence.

6. By reason of the matters aforesaid, I dismiss the appeal.

Representation:

Mr Richard Ma, GC of Department of Justice, for HKSAR

Appellant in person, present