HKSAR v. LE THI THAO

bjbj HCMA 656/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO. 656 OF 2009 (ON APPEAL FROM KCCC 3723/2009) ____

BETWEEN HKSAR Respondent and LE THI THAO Appellant _____ Before: Deputy High Court Judge Geiser in Court Date of Hearing: 17 September 2009 Date of Judgment: 17 September 2009 Date of Handing Down Reasons for Judgment: 9 October 2009 ______

REASONS FOR JUDGMENT ______ On 29 June 2009, the Appellant, a Vietnamese female pleaded guilty to four charges, those being two charges of theft contrary to Section 9, Theft Ordinance, Chapter 210, Laws of Hong Kong, 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, Chapter 115, Laws of Hong Kong and breach of a deportation order, contrary to Section 43(1)(a) of the Immigration Ordinance, Chapter 115, Laws of Hong Kong. In respect of the two charges of theft, the Appellant was sentenced to 6 months imprisonment on each charge to run concurrently with each other. With regards to the charges of unlawfully remaining in Hong Kong and breach of a deportation order, the Appellant was sentenced to 18 months and 15 months imprisonment respectively, these sentences were ordered to run concurrently with each other but consecutively to the sentences of 6 months on the theft charges, arriving at a total sentence of 24 months imprisonment. It is against these sentences that the Appellant appeals on the general grounds that the sentences are too severe. Annexed to her notice of appeal is a statement made by the Appellant in person indicating in support of her application that she has two young sons who are still at school in Vietnam and that

she is suffering from serious illness. In court, she told me that she is suffering from breast cancer and is presently undergoing treatment at Queen Elizabeth Hospital. On 17 September 2009 I dismissed the Appellant s appeal against the sentences imposed indicating that I would hand down my reasons at a later date. I now do so. The brief facts which the Appellant admitted in the court below indicated that she was an illegal immigrant from Vietnam who had arrived in Hong Kong the day before committing the two thefts. The thefts were committed by the Appellant with another person and involved the theft of a large amount of clothing and accessories from H & M and Zara in the Elements Shopping Mall in Tsim Sha Tsui. The total value of the property stolen amounted to some $22,000. In order to carry out the theft and to avoid detection, the Appellant brought along with her a bag containing an inner layer made out of adhesive tape and aluminium foil designed to interfere with the anti-theft devices in the two shops. When the Appellant was arrested in relation to the two thefts, she admitted that she was an illegal immigrant from Vietnam, and upon checking the Immigration record, it was discovered that was the subject of a deportation order issued in November 2008. The Appellant has three previous convictions which consisted of two offences of breach of condition of stay in 2006 when

she was imprisoned for a total period of 6 months, and one prior conviction for unlawfully remaining in Hong Kong in 2008 when she was imprisoned for 15 months. The mitigation put before the learned magistrate on behalf of the Appellant was precisely as she had averred to in her notice of appeal and uttered to myself in open court. Nothing further by way of mitigation was put before me by the Appellant. In his reasons for sentence, the learned magistrate alluded to the fact that as far as the thefts were concerned, a degree of sophistication and premeditation was involved in that they were not the usual type of cases of shop thefts that came before the courts. A large quantity of goods was stolen and the Appellant was in possession of a bag that was designed to foil the anti-theft alarm systems. A starting point of nine months imprisonment cannot be criticised despite the fact that the Appellant had no prior convictions of a similar nature. The learned magistrate took account of the Appellant s plea of guilty and sentenced her to a term of 6 months imprisonment on each charge which he ordered to run concurrently with each other. With regard to the charge of illegally remaining in Hong Kong however, this was not the first time that the Appellant had committed this offence. She had one previous similar conviction as recently as January 2008 when she was sentenced to a term of 15

months imprisonment. The learned magistrate was correct in pointing out in his reasons for sentence that the Court of Appeal stated in R v. So Man King (1989) 1 HKLR 142 that 15 months imprisonment is the proper sentence after a guilty plea for a first offender, and an upward adjustment is to be made for a person with a previous similar conviction. A sentence of 18 months imprisonment cannot be said to be manifestly excessive. After her release from prison, the Appellant was made the subject of a deportation order in November 2008. Within a matter of months, the Appellant in flagrant disregard for the court order returned to Hong Kong and committed offences of dishonesty. A sentence of 15 months imprisonment is entirely appropriate for an offence of this nature, notwithstanding the Appellant s plea of guilty to this charge. The learned magistrate found that the offences of illegally remaining in Hong Kong and breach of a deportation order arose out of the same facts and accordingly he ordered the two periods of imprisonment, i.e. 18 months and 15 months to run concurrently with each other. As charges 1 and 2, the offences of theft were distinct offences, he ordered the total term of 6 months imprisonment for the thefts to run consecutively to the term of 18 months, arriving at an overall sentence of 24 months imprisonment. I agree with the approach adopted by the learned magistrate and the sentences imposed, and accordingly the appeal agai 1udk

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