HKSAR v. SUKMA GANI AND ANOTHER

DCCC 578/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 578 OF 2012

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Reasons for Sentence

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Introduction

1. The fourteen charges in the present case are all breach of deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap.115. D1 is convicted upon his own plea of the first four charges whereas D2 is convicted upon his own plea of the last ten charges.

Facts

2. On the afternoon of 14 March 2012, D1 and D2 were intercepted and arrested by the police outside No.145 Hennessy Road, Wan Chai, Hong Kong.

3. It was subsequently found that D1’s fingerprints matched with those of DICKY YUSUP. Deportation Order (IMM CR 295/00) dated 8 May 2000 (“Deportation Order 1”) was in force against D1 under the name DICKY YUSUP. Under Deportation Order 1, D1 was required to leave Hong Kong and prohibited from being in Hong Kong at any time thereafter. An Immigration Officer served and explained a copy of Deportation Order 1 to D1 on 13 July 2000. D1 was deported from Hong Kong to Jakarta, Indonesia on 31 July 2000.

4. In breach of Deportation Order 1, D1 entered Hong Kong on the following dates under the name of SUKMA GANI:

(1)26 May 2009 (1^st Charge);

(2)20 June 2009 (2^nd Charge);

(3)26 June 2009 (3^rd Charge); and

(4)9 March 2012 (4^th Charge).

5. It was subsequently found that D2’s fingerprints matched with those of TRI WAHYU also known as Wahyu TRI. Deportation Order (IMM CR 299/10) dated 5 May 2010 (“Deportation Order 2”) was in force against D2 under the name TRI WAHYU also known as Wayhu TRI. Under Deportation Order 2, D2 was required to leave Hong Kong and prohibited from being in Hong Kong at any time thereafter. An Immigration Officer served and explained a copy of Deportation Order 2 to D2 on 17 May 2010. D2 was deported from Hong Kong to Jakarta, Indonesia on 17 May 2010.

6. In breach of Deportation Order 2, D2 entered Hong Kong on the following dates under the name of JONED ASRI:

(1)20 June 2010 (5^th Charge);

(2)17 July 2010 (6^th Charge);

(3)23 September 2010 (7^th Charge);

(4)21 October 2010 (8^th Charge);

(5)21 November 2010 (9^th Charge);

(6)1 March 2011 (10^th Charge);

(7)19 November 2011 (11^th Charge);

(8)14 December 2011 (12^th Charge);

(9)3 February 2012 (13^th Charge); and

(10) 29 February 2012 (14^th Charge).

The defendants’ previous criminal conviction records and antecedents

7. D1 has 2 previous convictions of theft sentenced in March 2000 and July 2007 and 1 previous conviction of breach of deportation order sentenced in July 2007. He was born in Indonesia in December 1974 and is now 37 years old. He used to be a vehicle maintenance worker and clothes seller. He is married with a 2-year-old daughter.  

8. D2 has one previous conviction of theft sentenced in February 2010 under the name TRI WAHYU. He was born in Indonesia in March 1960 and is now 52. He used to be a vehicle maintenance worker. He is married with a 20-year-old son.

Mitigation

9. In mitigation, Mr Lok submitted that both defendants pleaded guilty to the charges thus showing they were remorseful. Mr Lok therefore asked this court to impose a lenient sentence.  

Sentencing authorities

10. The maximum term of imprisonment for an offence under section 43(1)(a) of the Immigration Ordinance is 7 years. This offence is considered to be a more serious offence than unlawfully remaining in Hong Kong: HKSAR v Cortez Emily Bisoy HCMA457/2002. In Cortez Emily Bisoy, Deputy High Court Judge McMahon (as he then was) remarked that a sentence of 18 months’ imprisonment after plea for the first breach of deportation order could not be criticized.

11. In HKSAR v Gabriel Malou Lantin [2004] HKCU 1065, a starting point of 30 months’ imprisonment as the second breach of deportation order was approved on appeal. Madam Justice Beeson commented that a first time breach would warrant a starting point of 27 months’ imprisonment.

12. A sentence of 21 months’ imprisonment for a second breach of deportation order was accepted by the Court of Appeal in HKSAR v Pham Van Tuan CACC 272/2010 where the appellant had on three previous occasions been convicted of unlawfully remaining in Hong Kong and sentenced to 18 months’ imprisonment for breach of a deportation order. In HKSAR v Tran Viet Thanh [2012] 1 HKLRD 903, the Court of Appeal considered a sentence of 20 months’ imprisonment after plea for the second breach of deportation order appropriate.

13. In HKSAR v Mohammad Shehzad HCMA 793/2007, a sentence of 20 months’ imprisonment after plea for the third breach of deportation order was approved on appeal.

14. In HKSAR v Mac Nhu-ky DCCC 401/2012, a sentence of 24 months’ imprisonment after plea was imposed for the fourth breach of deportation order.

15. In HKSAR v Pham Van Hung CACC 14/2011, the Court of Appeal considered a sentence of 28 months’ imprisonment after plea for the fifth breach of deportation order appropriate.

16. In HKSAR v Bui Ngoc Thang (裴玉勝)   DCCC 464/2012, a sentence of 28 months’ imprisonment after plea was imposed for the seventh breach of deportation order.

Sentence

17. D1 has one previous conviction of breach of deportation order, thus making the 1^st to 4^th Charges his second to fifth breach of deportation order. In light of the aforesaid sentencing authorities, I will adopt the following starting points for the following charges against D1:

1^st Charge (D1’s second breach): 30 months’ imprisonment

2^nd Charge (D1’s third breach): 30 months’ imprisonment

3^rd Charge (D1’s fourth breach): 36 months’ imprisonment

4^th Charge (D1’s fifth breach): 42 months’ imprisonment

18. One-third discount is given to D1 for each of the 1^st to 4^th Charges for his guilty plea, thus reducing the sentence for the 1^st, 2^nd, 3^rd and 4^th Charges to an imprisonment of 20 months, 20 months, 24 months and 28 months respectively. There being no other valid mitigating features justifying any further reduction in sentence, D1 is sentenced to the aforesaid terms of imprisonment.

19. Having considered the totality principle, I order that 3 months in each of the 1^st to the 3^rd Charges to run consecutively with the 28 months in the 4^th Charge, thus making a total of 37 months’ imprisonment for D1.  

20. D2 has no previous conviction of breach of deportation order, thus making the 5^th to 14^th Charges his first to tenth breach of deportation order. In light of the aforesaid sentencing authorities, I will adopt the following starting points for the following charges against D2:

5^th Charge (D2’s first breach): 27 months’ imprisonment

6^th Charge (D2’s second breach): 30 months’ imprisonment

7^th Charge (D2’s third breach): 30 months’ imprisonment

8^th Charge (D2’s fourth breach): 36 months’ imprisonment

9^th Charge (D2’s fifth breach): 42 months’ imprisonment

10^th Charge (D2’s sixth breach): 42 months’ imprisonment

11^th Charge (D2’s seventh breach): 42 months’ imprisonment

12^th Charge (D2’s eighth breach): 48 months’ imprisonment

13^th Charge (D2’s ninth breach): 48 months’ imprisonment

14^th Charge (D2’s tenth breach): 48 months’ imprisonment

21. One-third discount is given to D2 for each of the 5^th to 14^th Charges for his guilty plea, thus making D2’s individual sentences after one-third discount as follows:

5^th Charge (D2’s first breach): 18 months’ imprisonment

6^th Charge (D2’s second breach): 20 months’ imprisonment

7^th Charge (D2’s third breach): 20 months’ imprisonment

8^th Charge (D2’s fourth breach): 24 months’ imprisonment

9^th Charge (D2’s fifth breach): 28 months’ imprisonment

10^th Charge (D2’s sixth breach): 28 months’ imprisonment

11^th Charge (D2’s seventh breach): 28 months’ imprisonment

12^th Charge (D2’s eighth breach): 32 months’ imprisonment

13^th Charge (D2’s ninth breach): 32 months’ imprisonment

14^th Charge (D2’s tenth breach): 32 months’ imprisonment

There being no other valid mitigating features justifying any further reduction in sentence, D2 is sentenced to the aforesaid terms of imprisonment.

22. D2 committed breach of deportation order for ten times between 20 June 2010 and 29 February 2012 thus showing his flagrant defiance of the law in Hong Kong. A deterrent sentence is required. Having considered the totality principle, I order that 3 months in each of the 5^th to the 13^th Charges to run consecutively with the 32 months in the 14^th Charge, thus making a total of 59 months’ imprisonment for D2.