R. v. NGUYEN VAN DOAN AND OTHERS

HCMA001498/1996

M.A. No.1478 of 1996
M.A. No.1493
of 1996
M.A. No.1498
of 1996

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H E A D N O T E

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MAGISTRATES’ APPEAL – SENTENCING POLICY FOR CHINESE ILLEGAL IMMIGRANTS SHOULD BE THE SAME FOR VIETNAMESE ILLEGAL IMMIGRANTS

DONG DUC DAI – M.A.835 OF 1996 (KEITH J.) NOT FOLLOWED

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NOS.1478, 1493 and 1498 OF 1996

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BETWEEN
THE QUEEN Respondent
AND
NGUYEN VAN DOAN
TRAN DINH-BINH
DINH VAN-DIEN
Appellants

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Coram: Hon Sears J. in Court

Dates of hearing: 4 April 1997

Date of judgment: 4 April 1997

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J U D G M E N T

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1. This is an appeal from Mr Line who has very properly given leave to appeal out of time for three Vietnamese illegal immigrants. Allpleaded guilty to remaining in Hong Kong without the authority of the Director of Immigration and were sentenced to 15 months imprisonment.I have dealt with the appeals together. They raise an important point because there appears to be a difference of approach, it maybe by some magistrates and indeed by some High Court judges, as to the appropriate sentence to pass.

2. The position as far as Chinese illegal immigrants are concerned, is that there has been a policy decision that they are either sentstraight back to China, or if found, for example, on construction sites or committing another offence, they are given 15 months’imprisonment. This is to deter illegal immigrants from coming to Hong Kong. This policy has been consistently followed – So Man King [1989]1 HKLR 142.

3. However what has recently been happening is that a number of Vietnamese have gone back to Vietnam from Hong Kong, either throughvoluntary repatriation or sometimes by forced repatriation. When they have returned, they have realised that there are better opportunitieshere so they have started to come back and no doubt have encouraged others to come to Hong Kong.

4. The three that I have today are people that have returned to Hong Kong to seek employment and magistrates are finding it difficultbecause if, for example, six illegal immigrants are arrested on the construction site for the new airport, four Chinese would receive15 months, then why should the other two not be treated in the same way.

5. In 1996, three High Court Judges found no difference in principle between Chinese and Vietnamese illegal immigrants. In October 1996,Keith J. however, thought 9 months imprisonment appropriate. In a clear and well researched judgment, he was of the opinion thatas the underlying policy of So Man King was the need to deter the large number of Chinese illegal immigrants coming into Hong Kong, then as there was no evidence that thelevel of Vietnamese illegal immigrants coming was as high, the 15 months policy guideline was not applicable. (Dong Duc Dai & Others M.A.835 of 1996).

6. I, with respect, do not agree with Keith J.’s approach.

7. The underlying principle behind Hong Kong’s stance on illegal immigrants is the damage, actual or potential, which may be causedto the population. Although the number of Vietnamese illegal immigrants is smaller than Chinese, damage is still caused.

8. The building of the airport which is a mammoth engineering project and has attracted worldwide attention unfortunately has also attractedthe attention of persons from other countries to work here. So there have been a large number of Chinese illegal immigrants foundworking on the construction site, and we now have a number of Vietnamese who have sneaked back into Hong Kong.

9. The Court of Appeal recently in Pham Duy-son and Ors Crim.App. 631 of 1996, dealt with an appeal of persons bringing Vietnamese illegal immigrants here and it was submitted that differentguidelines applied to those. Mortimer J.A. said :

“It is not appropriate to distinguish between the captains and crews of vessels because they happen to come from Vietnam rather thanChina.”

10. Power Ag.C.J. said :

“… we have a duty to the people of Hong Kong and we can fulfil this duty only by imposing a proper sentence upon those who seekto bring illegal immigrants into this Colony.”

11. In my judgment, there is nothing different in principle between Vietnamese and Chinese illegal immigrants and magistrates shouldsentence them to the same 15 months imprisonment.

12. However, there may well be circumstances where the magistrate is entitled to exercise his discretion to pass a lesser sentence. Theseappeals are dismissed.

(R.A.W. Sears)
Judge of the High Court

Representation:

Mr W.S. Cheung, C.C., for Crown/Respondent

Mr Eric Kwok, assigned by D.L.A., for Nguyen Van Doan

Tran Dinh-Binh and Dinh Van-Dien in person