HKSAR v. MAC NHU-KY

DCCC 401/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 401 OF 2012

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BETWEEN

HKSAR
v
MAC Nhu-ky

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Before: Deputy District Judge K.H. Cheang

Date: 15 June 2012 at 11:30 am

Present: Mr Alvin Chiu, Public Prosecutor of the Department of Justice, for HKSAR
Ms Cheng Mi Kuen May, of Messrs May Cheng & Co, instructed by the Legal Aid Department, for the defendant

Offences: (1) Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong (在香港非法入境後未得入境事務處處長授權而留在香港)
(2) Breach of deportation order (違反遞解離境令)

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Reasons for Sentence

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Introduction

1. The defendant is convicted upon his own plea of the following two charges:

(i) “Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong”,contrary to section 38(1)(b) of the Immigration Ordinance, Cap.115; and

(ii) “Breach of deportation order”, contrary to section 43(1)(a) of the Immigration Ordinance, Cap.115.

Facts

2. At about 6:20 pm on 28 March 2012, PC2449 intercepted the defendant on Tung Chau Street, Kowloon. No document of identificationwas found from the defendant who told PC2449 that he was an illegal entrant and he had entered Hong Kong from the Mainland by caron 21 March 2012. PC2449 therefore arrested the defendant for remaining in Hong Kong without the authority of the Director of Immigrationafter having landed unlawfully in Hong Kong.

3. The immigration record of the defendant revealed that the defendant was in breach of a deportation order dated 1 December 2004 imposedon him whereby he was required to leave Hong Kong and prohibited from being in Hong Kong at any time thereafter.

4. At a subsequent cautioned interview, the defendant admitted inter alia that:

(i) he came from Vietnam to the Mainland by car on 19 March 2012;

(ii) having arrived in the Mainland on 21 March 2012, he came to Hong Kong by car and arrived in Hong Kong on the evening of 21 March2012; and

(iii) he knew a deportation order had been imposed on him and he was not allowed to enter Hong Kong; but he came to Hong Kong becausehe was ill and poor.

The defendant’s previous criminal conviction record and antecedents

5. The defendant has 11 previous convictions, out of which there were 4 previous convictions of unlawful remaining respectively sentencedin 2003, 2005, 2007 and 2009, and 3 previous convictions of breach of deportation order respectively sentenced in 2005, 2007 and2009.

6. The defendant was born in Vietnam in February 1981 and is now 31 years old. He was last discharged from prison in Hong Kong in February2011. He is single. He is suffering from AIDS. He used to be a fisherman.

Mitigation

7. In mitigation, Ms Cheng asked for leniency from this court. Ms Cheng submitted that the defendant’s 54-year-old mother was sickin Vietnam and that the defendant also had AIDS. Ms Cheng asked this court to impose concurrent sentence for the present two charges.

Sentencing authorities

8. The maximum term of imprisonment for an offence under section 38(1)(b) of the Immigration Ordinance is 3 years.

9. In R v So Man King and others [1989] 1 HKLR 142, it was held that a sentence of 15 months’ imprisonment should be used as the basic guideline in cases of unlawful remaining, thatthe guideline of 15 months’ imprisonment allowed for a plea of guilty, and that the court should take into account, by upward adjustment,any previous unlawful entry, whether resulting in prosecution or not, and other circumstances which may aggravate the offence.

10. In HKSAR v Hau Hoi Tung CACC 39/2002, the Court of Appeal held that a sentence of 18 months’ imprisonment would have been justified for a plea of guiltyto a second offence of unlawful remaining and, for a third offence, there could have been no legitimate complaint to a sentence of21 months’ imprisonment where a plea of guilty had been entered.

11. Prosecuting counsel referred me to HKSAR v Pham Van Hung CACC 14/2011. In HKSAR v Tran Viet Thanh CACC 54/2011, the Court of Appeal dealt with sentencing on various immigration offences and discussed Pham Van Hung and other sentencing authorities on immigration offences, including HKSAR v Pham Van Tuan CACC 272/2010 and HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762.

Sentence

12. Having considered the facts of this case, including the fact that this is the defendant’s 5th conviction of unlawful remaining and 4th conviction of breach of deportation order, the mitigation advanced by the defendant’s legal representative and the sentencing authorities(including Hau Hoi Tung for the unlawful remaining charge), I am minded to adopt a starting point of 31½ months’ imprisonment for the 1st charge (unlawful remaining) and a starting point of 36 months’ imprisonment for the 2nd charge (breach of deportation order).

13. One-third discount is given to the defendant for his guilty plea, thus reducing the sentence for the 1st charge to 21 months’ imprisonment and that for the 2nd charge to 24 months’ imprisonment.

14. I have full sympathy to the health condition of the defendant’s mother but that is not a valid mitigating factor. The fact thatthe defendant has AIDS is not a mitigating factor either. In this connection, the Court of Appeal in R v Chau Kui-sheung [1996] 3 HKC 279 said inter alia that the fact that an offender was HIV positive, or had a reduced life expectancy, was not generally a reason which should affectsentence.

15. There being no other valid mitigating features justifying any further reduction in sentence, the respective sentences for the 1st and the 2nd charges are 21 months’ and 24 months’ imprisonment.

16. Having considered the totality principle, I order that 4 months of the sentence in the 2nd charge are to be served consecutively to the 21 months in the 1st charge, thus making a total of 25 months’ imprisonment.

KH Cheang
Deputy District Judge