HKSAR v. Dang Trung Doan

DCCC 737/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 737 OF 2014

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Reasons for Sentence
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1.The defendant pleaded guilty to one charge of Remaining in Hong Kong without the authority of the Director Immigration after having landed unlawfully in Hong Kong, contrary to s.38(1)(b) of the Immigration Ordinance, Cap.115; and one charge of Breach of deportation order, contrary to s.43(1)(a) of the Immigration Ordinance.

Summary of facts

2.The defendant was admitted into hospital after he felt unwell at 05:53am on 15 July 2014. The defendant disclosed to the nurse of the ward that he was an illegal immigrant a week later and the matter was reported to the Police.

3.Upon inquiry, the defendant claimed that he entered China from Vietnam and then sneaked into Hong Kong through Man Kam To by hiding underneath a cross-border truck on 14 July 2014.

4.Subsequent fingerprint check revealed that the defendant is the subject of a deportation order dated 20 December 2007 requiring him to leave Hong Kong and prohibiting him from being in Hong Kong anytime thereafter.

5.Not counting the present case, the defendant had breached his deportation order on 3 previous occasions. The defendant was last deported to Hanoi on 27 March 2014.

6.In a later cautioned interview, the defendant admitted that this was the 5^th time he sneaked into Hong Kong, he knew he was in breach of a deportation order and he came to Hong Kong for drug rehabilitation.

Previous convictions

7.The defendant has 10 previous conviction. Of those, 4 were for unlawfully remaining, 3 were for breach of a deportation order. His last conviction was on 19 April 2012 when he was sentenced to 3 years’ imprisonment for unlawfully remaining and breach of deportation order.

Mitigation

8.The defendant is 26, divorced and with a daughter aged 9. The daughter lives with the defendant’s ex-mother-in-law. The defendant helps with his own mother’s farming in a remote village in Hai Phong. The defendant was educated in Vietnam up to secondary level. He got into the habit of taking drugs and had been into drug addiction centres in Vietnam. Heroin was however easily available there and much cheaper than Hong Kong, and it has been impossible for him to stop his drug abuse. The defendant came into Hong Kong in order to get into jail to rid himself of his addiction.

Sentencing cases

9.Mr. Fung for the defendant referred first to the case of HKSAR v MAC Nhu-ky, DCCC 401/2012, which he thinks falls on all four with our present case. There the defendant pleaded guilty to the same two charges. It was his 4^th breach of a deportation order and 5^th unlawful remaining conviction. The learned Deputy District Judge adopted a starting point of 31.5 months’ imprisonment for the remaining charge and a starting point of 36 months’ imprisonment for the breach of deportation order charge, with discounted sentences of 21 and 24 months’ imprisonment respectively. 4 months of charge 2 was ordered to run consecutively to the sentence in charge 1, resulting in the final sentence of 25 months’ imprisonment.

10.In HKSAR v NGUYEN Thi Bich Thoa, DCCC 581/2013, the defendant pleaded guilty to using a forged identity card, unlawfully remaining in Hong Kong and breach of deportation order. It was her 6^th conviction for the breach of a deportation order and 6^th conviction for unlawfully remaining.

11.The learned judge referred to the High Court case of HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762 where it was held that a sentence of 18 months’ imprisonment was appropriate for a first offender of a breach of deportation order charge, but the sentence must be adjusted upwards for repeated offenders.

12.The learned judge referred also to HKSAR v Pham Van Hung, CACC 14 of 2011 where the Court of Appeal considered a 28 months’ imprisonment sentence appropriate for a 5^th conviction on a charge of breach of deportation order. There the applicant was also convicted for a 6^th time of unlawfully remaining in Hong Kong and a sentence of 20 months’ imprisonment was considered appropriate. The sentences were then ordered to run concurrently.

13.The learned judge in DCCC 581/2013 went on to sentence the defendant to 18 months’ imprisonment on the use of forged identity card charge; 24 months’ imprisonment for the unlawful remaining charge and 28 months’ imprisonment for the breach of deportation order charge. These are all sentences after plea. All 3 sentences were ordered to run concurrently. The case went on appeal as CACC 295 of 2013 and the sentence was upheld.

14.Mr. Hui for the prosecution referred to the case of HKSAR v Bui Van Khai, CACC175/2012. It was the applicant’s 3^rd conviction for unlawfully remaining and 2^nd conviction for being in breach of a deportation order.

15.The Court of Appeal first of all find that the sentences imposed on the 2 charges should run concurrently, since on entering Hong Kong illegally, the applicant had committed both offences where the underlying criminality was the same, namely his unlawful presence in Hong Kong. It is the Court’s view that while a charge for unlawfully remaining in Hong Kong would be made more serious when there was a deportation order, it did not mean a partially consecutive sentence was necessarily appropriate.

16.The Court of Appeal furthermore find that a total sentence of 3 years after plea for the 2 charges was manifestly excessive even though the applicant was a repeated offender. The Court did not disturb the individual sentences of 18 months and 24 months but ordered that they should run concurrently, resulting in an overall sentence of 2 years’ imprisonment after plea.

Sentence

17.The maximum sentence under charge 1 is that of 3 years’ imprisonment and a fine at level 4. The maximum sentence under charge 2 is that of 7 years’ imprisonment. Breach of a deportation order is therefore the more serious of the 2 offences in the eyes of the legislature.

18.The defendant has shown no regard to the deportation order. Every time he sneaks into Hong Kong, considerable amount of manpower and taxpayers’ money will have to be spent to deal with him. The defendant’s latest convictions were in April 2012 when he was sentenced to a total of 36 months’ imprisonment for the 2 charges. It must therefore have only been a short time after the defendant’s release that he decided to sneak back into Hong Kong again. I find this an aggravating factor.

19.I find the defendant’s repeated breach of the deportation order as well as his repeated entering in Hong Kong illegally and then remaining an aggravating factor. The sentence imposed must include a factor of deterrence.

Unlawfully Remaining

20.In relation to charge 1, this being the defendant’s 5^th similar conviction, I will adopt a starting point such that the sentence after the one-third discount was applied is that of 21 months’ imprisonment.

Breach of Deportation Order

21.In relation to charge 2, this being the defendant’s 4^th similar conviction, I will adopt a starting point such that the sentence after plea is that of 27 months’ imprisonment.

Totality

22.Bearing in mind recent authorities suggesting that the sentences in cases involving the 2 charges like our present ones should run concurrently, I order the sentences in the two charges be served concurrently. Total sentence is therefore 27 months’ imprisonment.