HKSAR v Bui Van Khai

Court of Appeal
Criminal Appeal No 175 of 2012
Yeung V-P and Barnes J
Criminal Sentencing
22, 27 February 2013

Immigration offences — having landed unlawfully in Hong Kong remaining without authority

The defendant (“D”) pleaded guilty to remaining in Hong Kong without authority after having landed unlawfully the previous day (“Charge 1”) and breach of a deportation order (“Charge 2”). The Judge sentenced D on Charge 1 to 18 months’ imprisonment; and on Charge 2 to two years’ imprisonment with 18 months to run consecutively to the term on Charge 1, resulting in three years’ imprisonment. The offences were committed in breach of an 18-month suspended sentence and nine months were activated to run consecutively to the three-year term on Charges 1 and 2, making a total of three years and nine months’ imprisonment. D applied for leave to appeal against sentence, seeking concurrent sentences on Charges 1 and 2. This was the third time D was convicted of unlawfully remaining and the second time of being in breach of a deportation order.

Held, allowing the appeal by reducing the sentence to two years and nine months’ imprisonment, that, inter alia:

The sentences imposed on Charges 1 and 2 should have been ordered to run concurrently. However, on entering Hong Kong illegally, D had committed both offences; and their underlying criminality was the same, namely his unlawful presence in Hong Kong. While 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. Further, a total sentence of three years on Charges 1 and 2 reflected a notional starting point of four-and-a-half years which was manifestly excessive, despite the repeat offence.