HKSAR v. Ngo Quang Thao

DCCC 985/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.985 OF 2012

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Reasons for Sentence

1.The defendant pleaded guilty to one charge of ‘breach of deportation order’[1] and one charge of ‘remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong’[2].

Summary of Facts

2.By a Deportation Order dated 9^th April 2002, the defendant was ordered to leave Hong Kong and prohibited from being in Hong Kong at any time thereafter. The defendant was deported back to Vietnam on 16^th May 2002. He was also subsequently deported on 2 other occasions on 22^nd July 2004 and 15^th November 2006.

3.The defendant was intercepted at a Police road block whilst travelling in a taxi at about 5:40am on 24^th September 2012. The defendant failed to produce any identity documents and was arrested for the offence of ‘unlawful remaining’. Upon investigation, the above mentioned deportation order was revealed and the defendant was charged with the present offences.

Previous convictions

4.The defendant has 8 previous convictions from 3 court appearances. 3 of his convictions were for unlawfully remaining in Hong Kong and 2 for breach of deportation order. His last conviction was on 30^th March 2005 for the same kind of offences he is now facing and was sentenced to imprisonment for a total of 18 months. The defendant was released on 8^th November 2006 and deported back to Vietnam.

Mitigation

5.The defendant is 32, born in Vietnam, educated up to primary level. The defendant is married and was living with his wife, two children and his parents in Vietnam prior to coming to Hong Kong on this occasion. The defendant’s father has been a mental patient for 30 years and his mother suffers from asthma. The defendant worked as a farmer and factory worker in Vietnam. I am told that he just wants to return to Vietnam to take care of his family.

6.Mr. Lok for the defendant referred to the case of HKSAR v Tran Viet Thanh, CACC 54 of 2011, CACC 221/2011 and HCMA 360/2011 (heard together). There the Court of Appeal was taken through a comprehensive review and in depth analysis of the authorities on the related offences including those in our present case.

7.Mr. Lok submits that the applicant Tran Viet Thanh had a similar record to that of our present defendant. The Court of Appeal considered that a sentence of 18 months’ imprisonment after plea in relation to the applicant’s unlawful remaining charge and a sentence of 20 months’ imprisonment after plea in relation to the breach of deportation order charge was appropriate. The Court then ordered 5 months of the breach of deportation order sentence to be served consecutively to the rest of the sentences, resulting in a total sentence of 25 months’ imprisonment.

Sentence

8.The defendant is a repeated offender, this is his third similar conviction for the charge 1 and fourth similar conviction for the charge 2 offence.

9.Although I sympathize with the defendant for his parents’ health and am aware of the defendant’s newborn child, the fact is the defendant himself knew about all these circumstances and still decided to risk his liberty coming to Hong Kong. Given that this is not his first commission of the 2 offences, the defendant knew clearly what the consequences would be should he be caught. The defendant, unfortunately, has no one but himself to blame for having to spend a prolonged period of time away from his family as a result of his transgression.

Charge 1

10.Bearing in mind that this is the defendant’s third similar conviction and the various authorities referred to in the case of Tran Viet Thanh, I will adopt a starting point of 30 months’ imprisonment in relation to charge 1 and sentence the defendant to 20 months’ imprisonment upon discounting the sentence for his plea of guilty.

Charge 2

11.I am aware that charge 2 is a less serious offence than charge 1 in the eye of the court. This is however the fourth similar conviction for the defendant and as such there must be some upward adjustment of the initial starting point.

12.I will adopt a starting point of 27 months’ imprisonment and reduce it by one third to that of 18 months’ imprisonment in recognition of the defendant’s plea of guilty.

Totality

13.As it had previously been pointed out by the Court of Appeal in the case of HKSAR v Pham Van Tuan CACC 272/2010, the unlawful remaining and breach of deportation order offences arose out of the same facts and are not separate and distinct offences.

14.Applying the principle of totality, I will order that 5 months of charge 2 to be served consecutively to the sentence in charge 1, the rest of the sentence to be served concurrently. The defendant is therefore sentenced to a total of 25 months’ imprisonment.

[1] Contrary to s.43(1)(a) of the Immigration Ordinance, Cap.115

[2] Contrary to s.38(1)(b) of the Immigration Ordinance