HKSAR v. NGUYEN THI LINH

HCMA 1128/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1128 OF 2004

(ON APPEAL FROM ESCC 4347/2004)

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J U D G M E N T

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1.  On 25 October of this year, the appellant, a Vietnamese woman, was convicted on her own plea of guilty by Mr Ian Candy, Principal Magistrate sitting at the Eastern Magistrates’ Court, of two offences of theft contrary to section 9 of the Theft Ordinance and one offence of a breach of a deportation order contrary to the Immigration Ordinance, section 43(1)(a). 

2.  She was sentenced to 4 months’ imprisonment for each of the theft charges.  The magistrate ordered those sentences to run concurrently.  For the breach of the deportation order offence, she was sentenced to 2 years’ imprisonment.  The magistrate ordered that she serve that sentence consecutively to the sentences she received in respect of the theft offences.  The appellant therefore received a total sentence of 28 months’ imprisonment.  She now appeals against those sentences saying that they are too severe.

3.  The brief facts of the case are these.  In the evening of 3 October of this year, the appellant was stopped by a police officer and searched.  Items of stolen property were found in her possession.  They were items of clothing that she had stolen from the Jusco Department Store and the UNY Department Store in Citiplaza.  After caution, the appellant admitted that she had stolen those items of clothing from those two shops.  She was arrested.

4.  Further investigation by the police revealed that the appellant had entered Hong Kong on 20 September of this year under a false identity.  She had in fact already been deported to Hanoi in Vietnam under a deportation order signed by the Secretary for Security in August of this year.  The deportation order required the appellant to leave Hong Kong and prohibited her from returning and being in Hong Kong at any time in the future.  She was clearly in breach of that deportation order.

5.  The magistrate took a starting point sentence of 6 months’ imprisonment for each of the theft offences and reduced that to 4 months’ imprisonment to reflect the appellant’s guilty pleas.  For the breach of deportation order offence, he took a starting point sentence of 3 years’ imprisonment and reduced that to 2 years, again to reflect the appellant’s guilty pleas.

6.  The sentences of 4 months’ imprisonment in respect of the two theft charges are neither wrong in principle nor are they manifestly excessive.  It is also well established by a previous authority of this court that a sentence of 2 years’ imprisonment for an offence of a breach of a deportation order is, after plea, the appropriate sentence. 

7.  I have reference there to two decided cases, HKSAR v Gabriel Malou Lantin, an unreported case, HCMA 716 of 2004, and another case, HKSAR v Nguyen Tuan Anh, again unreported, HCMA 1091 of 2003.  The sentence, therefore, of 2 years’ imprisonment that the appellant received for this offence is neither wrong in principle nor is it manifestly excessive.

8.  There is no merit whatsoever in the appellant’s appeal against sentence and it is dismissed.

Ms Olivia Tsang, GC of the Department of Justice, for the Respondent

The Appellant, in person