HKSAR v. Ngo Van Lam Aka and Another

DCCC 733/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 733 OF 2012

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of theft of $40,000, contrary to section 9 of the Theft Ordinance, Chapter 210 (charge 1); one charge of remaining in Hong Kong without authority having landed unlawfully, contrary to section 38(1)(b) of the Immigration Ordinance, Chapter 115 (charge 2); and one charge of breach of deportation order, contrary to section 43(1)(a) of the Immigration Ordinance (charge 3).

2.In summary at about 1.30 p.m. on the 18th July this year Mr Chiu Chi-ling was exchanging money at a money exchanger in Fuk Wa Street, Sham Shui Po when the defendant suddenly snatched $40,000 from his hand.  The defendant fled dropping the money on the way.      Mr Chui shouting after the defendant gave chase, which was observed by a passerby, Mr Liu, who helped to intercept the defendant. 

3.The police arrived and arrested the defendant.  When asked to produce proof of identity the defendant revealed he was an illegal immigrant from Vietnam.  In a subsequent interview the defendant admitted snatching the money from Mr Chiu.

4.Enquiries revealed the defendant was subject to a deportation order dated 21st October 2006, prohibiting him from entering Hong Kong for life.  The defendant was last deported on the 13th October 2011, also in breach of the same deportation order

5.In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Si, including that the defendant and his ex-wife and son aged eight have contracted HIV aids and that the defendant came to Hong Kong to find work so as to better provide for the medical treatment of his son. 

Theft

6.Mr Si submits the defendant having just arrived in Hong Kong after two days travel from Vietnam was starving when he snatched the money and that he did not know how much money he had snatched until he was told by the police.  Whilst the defendant may not have known the exact amount of money in Mr Chiu’s hand he must surely have been aware this was substantial and not just a few dollars.  I am satisfied the proper starting point after trial is 1 year and 6 months imprisonment. Giving the defendant full credit for his plea of guilty reduces the sentence to 12 months imprisonment.

Unlawful remaining

7.In R v. SO Man-king [1989] 1 HKLR 142 the Court of Appeal held that allowing for a plea of guilty a sentence of 15 months imprisonment should be used as the basic guideline unless there are strong humanitarian considerations to depart there from.  The Court of Appeal further held that a court should take into account, by upward adjustment, any previous unlawful entry.

Breach of deportation order

8.There are no guideline sentences for breach of a deportation order.  The maximum sentence for unlawful remaining is 3 years imprisonment, whereas the maximum sentence for breach of deportation order is            7 years imprisonment.  The courts have therefore viewed the offence as more serious than that of unlawful remaining and have upheld sentences of 18 months imprisonment after plea (see for example HKSAR v Nguyen Chi-trung HCMA 1095/2001 as applied in HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762).  Again a court should take into account, by upward adjustment, any previous breach.  

9.The underlying criminality however for the two offences is the same, namely the defendant’s unlawful presence in Hong Kong.  In HKSAR v Pham Van-tuan CACC 272/2010 the Court of Appeal said that the offence of unlawful remaining is made more serious when there was a deportation order.  The defendant in that case had three previous convictions for unlawful remaining and one for breach of a deportation order.  The court held that a total sentence of 23 months imprisonment after plea was appropriate.  This was achieved by ordering 3 months on the breach of a deportation order to be served consecutively to the sentence for unlawful remaining.

10.In HKSAR v Pham Van-hung CACC 14/2011 the defendant had five previous convictions for both unlawful remaining and breach of a deportation order.  The Court of Appeal accepting this was more serious than Pham Van-tuan considered the appropriate starting points should be 30 months for unlawful remaining and 42 months for breach of a deportation order.  The court further considered a total sentence of         28 months imprisonment after plea to be appropriate and accordingly ordered both sentences to be served concurrently.

11.The defendant having four previous convictions for unlawful remaining and three convictions for breach of a deportation order I am satisfied the proper starting point after trial for unlawful remaining is       2 years and 6 months imprisonment and for breach of deportation order is 3 years and 3 months imprisonment.  Giving the defendant full credit for his pleas of guilty the sentences are reduced to 1 year and 8 months imprisonment for unlawful remaining and 2 years and 2 months imprisonment for breach of the deportation order.   I am satisfied a total sentence of 26 months imprisonment is appropriate and therefore order the sentences on the two charges to be served concurrently.

12.The offences are however separate and distinct from the theft charge.  In HKSAR v. Tong Fuk-sing [1999] 3 HKLRD 710 the Court of Appeal said that, unless, for example, there exist some compelling circumstances, such as strong humanitarian reasons, the sentence for the immigration offences should normally be imposed consecutively to the sentence imposed for the offence which accompanies it. 

13.Whilst I sympathise with the defendant as to his health condition and that of his family, in particular his young son, the defendant knew of this before leaving Vietnam yet still decided to come to Hong Kong, knowing he would receive a lengthy prison sentence if arrested.  Further I am satisfied the prison authorities will closely monitor the defendant’s health condition as no doubt they have in the past.  Should there be deterioration in his health the defendant can seek clemency from the executive.  I am satisfied there are no strong humanitarian grounds to reduce the sentence in this case.

14.I am satisfied a wholly consecutive sentence is appropriate for the theft offence making a total sentence to be served by the defendant of       3 years and 2 months imprisonment, which I am satisfied properly reflects his criminal culpability on the three charges.

15.Giving the defendant full credit for his pleas of guilty he is convicted and sentenced as follows:

Charge 1 – 12 months imprisonment;

Charge 2 – 1 year and 8 months imprisonment;

Charge 3 – 2 years and 2 months imprisonment;

I order charges 2 and 3 to be served concurrently but consecutive to charge 1, making a total sentence to be served by the defendant of 3 years and 2 months imprisonment.