HKSAR v. Pham, Van Tuan

HCMA282/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 282 OF 2009

(ON APPEAL FROM STCC NO. 1432 OF 2009)

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Before:  Deputy High Court Judge Line in Court

Date of Hearing:  19 May 2009

Date of Judgment:  19 May 2009

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J U D G M E N T

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1.This is an appeal against a sentence of 12 months’ imprisonment imposed upon the Appellant for an offence contrary to section 43(1)(a) of the Immigration Ordinance, namely, entering Hong Kong whilst the subject of a deportation order for life. 

2.The Appellant had sneaked into Hong Kong by ferry on 7 August 2008.  Because of that, he was prosecuted for illegally remaining, pleaded guilty and was sentenced to 15 months’ imprisonment.  Rather unfortunately, because it would have been much better if it had all happened at once, he was prosecuted later for being in breach of the deportation order.  It was his fifth conviction for such an offence. 

3.Accordingly, the starting point the magistrate took of 36 months was in line with the authorities.  The magistrate gave a third off for the plea of guilty and came in his mind to a sentence of 2 years’ imprisonment.  He took the view that if he had dealt with both matters together, namely, the illegal remaining and the breach of the deportation order, he would have passed a total sentence of 27 months.  Accordingly, he reduced the sentence of 2 years for breach of the deportation order to one of 12 months but made it consecutive to the 15 months, producing a total of 27 months’ imprisonment.

4.The mechanics of the sentencing do not really matter; it is the total that does.  For a man who has come here now five times in breach of a deportation order, 27 months is amply merited.  Accordingly, the appeal against sentence is dismissed.

Representations:

Mr Simon Tso, Senior Public Prosecutor, of the Department of Justice, for the Respondent

Appellant: Pham, Van Tuan, in person