HKSAR v. Ta Dinh Son
Read the full judgment text of CACC 348/2013 on BabelCite. This Court of Appeal judgment was delivered on 9 January 2014 before Stock VP, Barnes J.
Criminal law – sentencing – immigration offences – breach of deportation order – s.43(1)(a) Immigration Ordinance (Cap 115) – remaining in Hong Kong without authority – s.38(1)(b) Immigration Ordinance – attempted theft – consecutive versus concurrent sentences – repeated breaches of deportation order – aggravating features – starting point – guilty plea discount – whether s.38 offence adds to culpability of s.43 offence – appellate intervention on totality – applicant Vietnamese national who entered Hong Kong from Shenzhen by hiding in a truck on 28 May 2013 constituting seventh breach of deportation order made in August 1998 – attempted necklace snatching in Mong Kok on 29 May 2013 – whether sentencing judge erred in ordering part of s.43 sentence to run consecutively to s.38 sentence – held that s.38 offence does not add to culpability of s.43 offence and sentences should run concurrently – correct approach normally is to sentence for the deportation order offence and run such sentence concurrently with any lesser sentence for the s.38 offence – whether 27-month starting point for first breach of deportation order after trial is appropriate – held that 27 months is generally the appropriate starting point – aggravating features of seventh breach and failure of escalating prior sentences to deter – pre-discount point of 42 months adopted – whether applicant's family-related mitigation was credible by 2013 – held self-evidently far-fetched – sentence for s.43 offence fixed at 28 months after one-third discount – sentence for s.38 offence of 18 months ordered to run wholly concurrently with s.43 sentence – sentence for attempted theft of 12 months ordered to run consecutively to concurrent s.38/s.43 sentences – total sentence reduced from 42 months to 40 months – warning that any further breach of deportation order will attract materially greater sentence.
Legal issues: Whether part of sentence for breach of deportation order should run consecutively to sentence for remaining in Hong Kong without authority · Appropriate starting point and overall sentence for repeated breach of deportation order
Outcome: Leave to appeal granted; appeal allowed to the extent that the sentence for the third charge was adjusted from 24 months to 28 months, the sentence on the third charge was ordered to run concurrently with the second charge, and the total sentence was reduced from 42 months to 40 months.
Cited by 43 cases · Cites 5 cases
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CACC 348/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 348 OF 2013 (ON APPEAL FROM DCCC NO. 705 OF 2013) ________________________ BETWEEN
________________________ J U D G M E N T ________________________ Hon Stock VP (giving the judgment of the Court): Introduction 1.This is an application for leave to appeal a total sentence of 42 months’ imprisonment for one offence of attempted theft and two immigration offences. 2.The applicant pleaded guilty to three offences before Judge Tallentire in the District Court:
3.On 6 September 2013, the judge sentenced the applicant as follows:
He ordered the sentences in respect of the first and second charges to run consecutively (thus far, making a total of 30 months’ imprisonment) and then ordered 12 months in respect of the third charge to run consecutively to, the remainder concurrently with, the other sentences. This made for a total of 42 months’ imprisonment. 4.The applicant is Vietnamese and at the time of his appearance before Judge Tallentire, he was aged 48 years. The mitigation advanced on his behalf was that he came with his family to Hong Kong at the time of the Vietnamese refugee crisis and was detained in the Whitehead camp but lost contact with his family in 1996. The suggestion was that despite a deportation order in 1999, he kept returning to Hong Kong in breach of that order in an attempt to relocate his wife and two daughters. It was further said that he has now ascertained that his younger daughter is in Russia, so that he intends not to re-enter Hong Kong in the future. Previous convictions 5.Against that suggested background, we note that he has a string of previous convictions:
The present offences 6.The offences with which Judge Tallentire was concerned were committed on 29 May 2013. The previous day, 28 May 2013, the applicant had entered Hong Kong from Shenzhen, apparently by hiding in a truck. That entry constituted the 7th breach of the deportation order; and accounted for the second and third charges. 7.About 11 pm on 29 May 2013, the applicant approached a 47-year-old female who was walking in Mong Kok and he attempted to snatch her necklace. She resisted and he fled empty-handed and was caught soon thereafter. This attempted theft formed the subject matter of the first charge. 8.The judge appeared to accept the mitigation as to the attempts by the applicant to find his family but said that the applicant could not go on breaching the deportation order. He imposed the sentences to which we have referred to in paragraph 3 above. The error 9.Mr Chan for the applicant, who has argued the matter ably and realistically, does not take issue with the individual sentences. His sole point is that the judge erred in principle in ordering part of the sentence imposed for the offence of breach of the deportation order to run consecutively to the sentence for remaining in Hong Kong without authority. Mr Chan says that the offence of remaining unlawfully in Hong Kong does not add to the culpability constituted by the breach of deportation offence under section 43. 10.We think that that submission is self-evidently correct and dicta to the same effect are to be found in other judgments, most recently in the judgment of Barnes J in HKSAR v Bui Van Khai [2013] 2 HKLRD 471. The immigration offences compared 11.It may be that the judge’s error was occasioned by a comment in HKSAR v Pham Van Tuan CACC 272 of 2010, unreported, 18 February 2011, to the effect that “the offence of unlawfully remaining in Hong Kong of course would be more serious when there was a deportation order”; but it seems to us clear that, in context, that comment was not intended to derogate from the earlier conclusion in that judgment that the culpability inherent in the offence of being in Hong Kong in contravention of a deportation order was not aggravated by the concurrent, and inevitably consequential, offence of remaining in Hong Kong without lawful authority. What was no doubt intended by the comment was the obvious point that to be here in breach of a deportation order was in itself a more serious offence than to be here unlawfully but not in breach of such an order. 12.That the deportation offence is more serious is evident from the penalties provided by the Ordinance. An offence contrary to section 38(1)(b) – remaining without permission, having landed unlawfully – carries a maximum term of three years’ imprisonment; whereas an offence contrary to section 43(1)(a) – breach of a deportation order – carries a maximum term, upon indictment, of seven years’ imprisonment. The point was correctly made by Beeson J in HKSAR v Nguyen Chi Trung, HCMA 1095 of 2001, unreported, 24 January 2002, that:
The correct approach 13.So the correct approach, normally, is to sentence for the deportation order offence and make such sentence run concurrently with such lesser sentence as is imposed for the section 38 offence. We say ‘normally’ because it is conceivable that an offender may have committed a series of unlawful remaining offences but is appearing for the first time for breach of a deportation order; in which case it may be, depending on the facts, that a different disposition is warranted. 14.In the present case there was nothing to justify an order that part of the sentence for breach of the deportation order run consecutively to the sentence imposed for the section 38 offence. 15.Whilst Mr Chan takes no issue with the sentences imposed for the individual offences, it is open to this Court to revisit those sentences and then the totality. Obviously the fact of repeated breaches of the deportation order constitutes a significant aggravating feature and a question arises whether what the judge referred to as the starting point of 3 years was adequate. 16.We say “what the judge referred to as the starting point” because what he in fact was referring to was not the starting point, but the point he reached after taking into account the aggravating feature. In that regard, we note that some of the appellate judgments (for example HKSAR v Pham Van Hung CACC 14 of 2011, unreported, 12 August 2011, para 12) refer to the sentencing point reached after applying aggravating features as the starting point. That, with great respect, is an approach liable to mislead. A starting point reflects the appropriate sentence for a first offender for the particular category and type of offence, absent aggravating and mitigating features. As the Sentencing Council in the UK has emphasised (for example in its Magistrates’ Court Sentencing Guidelines issued in 2009) a consistent application of terms such as “starting point” is essential and a starting point applies to a first-time offender who has been convicted after trial and is a point “from which the sentencer can depart to reflect aggravating or mitigating factors affecting the seriousness of the offence” (para 1(c) of those Guidelines). By definition, a point reached only after application of aggravating features is not the point from which the sentencer has started. 17.So what is the appropriate starting point for an offence under section 43(1)(a) of Cap. 115? We have not heard argument upon the issue and there may be cases where the offence for which, or the circumstances in which, the deportee has been removed pursuant to a deportation order are such as to make a first breach particularly serious but it would seem that, generally, for a first such offence, the starting point after trial which has been adopted is one of 27 months’ imprisonment: see Beeson J in HKSAR v Gabriel Malou Lantin, [2004] HKEC 1072 : “The authorities indicate a first offence of breach of deportation order, the starting point of 27 months would be appropriate”; and HKSAR v Mohamed Malurdeen Mohamed Riyaz [2003] HKEC 1091, per Deputy Judge Longley. See also HKSAR v Joned Asri CACC 345 of 2012, unreported 17 April 2013, where the assumption seems to have been made that 27 months after trial for a first offender was appropriate. The suggestion in that case (at para 19) that “the enhanced starting points ought to have flattened out after the fifth breach, that is, at 42 months imprisonment” was expressly stated to relate to the facts of that case. Given that the maximum term for the offence is 7 years’ imprisonment, there is no ceiling at 42 months established by that judgment, though whether that sort of level might appropriately be exceeded must yield to the circumstances of the particular case. This case 18.The starting points and resulting sentences for the offences of theft and remaining in Hong Kong without authority are not in issue in this case and we will not interfere with them. 19.In relation to the section 43 offence, the starting point should have been in the region of 27 months. 20.The aggravating features were significant. This was no less than the 7th occasion of coming back into Hong Kong in breach of the deportation order and it is clear that the slightly increased sentences on some of the previous occasions have served not a jot to deter the applicant. The judge seems to have accepted the mitigation that the applicant was looking for his family. If so, that was, with respect, a most generous acceptance for even if that had been the reason as far back as, say, 1999 and 2000 and 2003 , by the time of these present offences in 2013, the suggestion that the applicant really thought his family might be in Hong Kong was self-evidently far-fetched; and the offences of violence for which on two occasions he has been convicted do not sit altogether comfortably with a picture of a person of good character intent on keeping a low profile while searching for members of his family. But for the suggested personal circumstances, we think that for the section 43 offence, the appropriate (aggravated) sentence before discount for the plea was one of 4 years’ imprisonment. With considerable hesitation, we are prepared to assume in the applicant’s favour that which the judge was prepared to assume, that there was a special circumstance which occasioned these repeated breaches. Nonetheless with the passage of time, the weight to be given to that must necessarily wane. We will take a point of 42 months as the point before deduction for the plea. Giving credit for the plea of guilty, the appropriate sentence for the section 43 offence is one of 28 months’ imprisonment. 21.The sentence of 18 months in relation to the second charge ought to have been ordered to run wholly concurrently with the sentence on the third charge. Conclusion 22.Accordingly, we grant leave to appeal sentence, treat the hearing of the application as the appeal, and allow the appeal to the extent that we set aside the sentence of 24 months’ imprisonment in relation to the third charge and substitute therefore a sentence of 28 months’ imprisonment. Further, we set aside the order rendering part of the sentence on the third charge to run consecutively to the sentence of the second charge; instead we order the sentence on the third charge (28 months) to run wholly concurrently with sentence on the second charge (18 months). The sentence in respect of the first charge (attempted theft) remains unaltered (12 months) but we order that sentence to run wholly consecutively to the concurrent sentences of 28 months and 18 months’ imprisonment, making a total of 40 months’ imprisonment. 23.It is perfectly clear that the applicant’s family is not in Hong Kong. He has told Judge Tallentire that he has found his daughter who is in Russia and that there is no need for him in the future to return to Hong Kong. He is therefore on notice that should he return yet again to Hong Kong in breach of the deportation order, the sentence he should expect for such an offence will be materially greater than the sentence imposed on this occasion.
Ms Winnie T W Lam, SPP of Department of Justice, for the Respondent Mr Kevin Chan, instructed by Tang & Lee, assigned by DLA, for the Applicant |
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