|
DCCC 815/2017
[2018] HKDC 315
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 815 OF 2017
-----------------------------------
| |
HKSAR |
|
| |
v. |
|
| |
JOAQUIN LILIA ADELANTE
(also known as OCAMPO MAGDALENA MUSNI, OCAMPO MAGDALENA M,
JOE RAMOS A, OCAMPO MAGDALENA MUSHI, RAMOS JOE A,
SANTOS EVELYN, TALAO JOCELIN D,
TALAO JOCELYN D and TALAO JOCELIN)
|
|
-----------------------------------
| Before: |
HH Judge Douglas T.H. Yau |
| Date: |
22 March 2018 at 11:18 am |
| Present: |
Mr. Oliver DAVIES, Counsel on fiat, for HKSAR |
|
Mr. Philip ROSS, instructed by M/s Kevin Ng & Co, assigned
by DLA, for the Defendant |
| Offences: |
[2] & [3] Breach of deportation order (違反遞解離境令) |
----------------------------
Reasons for Sentence
----------------------------
1. The defendant faced one charge of theft and two charges of breach of deportation order, being charges 1, 2 and 3.
2. The defendant was convicted of charges 2 and 3 upon her guilty plea and admission to the summary of facts.
3. The defendant was acquitted of charge 1 upon the prosecution offering no evidence against her.
Summary of facts
4. On 30th June 2017, at around 4:55pm, the defendant was stopped outside a supermarket in Tung Chung by a security guard of the supermarket. She was later arrested and taken to Tung Chung Police Station.
5. Based on fingerprints identification, the defendant was found to be the subject of a deportation order issued against her on 2nd October 1996, under her then name of OCAMPO Magdalena Musni.
6. Meanwhile, the defendant had been entering and leaving Hong Kong using a Pilipino passport under a different name, JOAQUIN Lilia Adelante.
7. The defendant was therefore charged for her entry into Hong Kong via the airport on 16th June 2017, and her entry into Hong Kong via the China Hong Kong Ferry Terminal on 27th June 2017.
Previous convictions
8. The defendant has 19 convictions from 7 court appearances. Her first conviction for breach of deportation order was in October 2011. She was then convicted twice on the same day in May 2013 for the same charge. On that occasion, she was sentenced to concurrent 10 months’ imprisonment sentences, which was ordered to be suspended for 12 months.
9. I was told by Mr Ross for the defendant that the reason why the sentences for the 2013 convictions were ordered to be suspended was that the offences were committed during same period in 2011.
Mitigation
10. The defendant is 49. She separated with her husband in 2007. She is the mother of 4 sons and 1 daughter.
11. The defendant used to work as a beautician earning around $3,000 Hong Kong in the Philippines.
12. The defendant did not come to Hong Kong to find employment or to make money. She came to Hong Kong on this occasion to support one of his sons who was facing trial for conspiracy to steal. Her son was convicted, had served his sentence and is now back in the Philippines.
13. The defendant committed the offence in charge 3 so that she could get her 14 days visitor visa renewed. In order to do that, she left Hong Kong via the China Hong Kong Ferry Terminal on 26th June and came back the following day.
Sentencing considerations
14. The maximum sentence for the offence of Breach of Deportation Order on conviction upon indictment is that of 7 years’ imprisonment.
15. Although there are no sentencing guidelines, the Court of Appeal in the case of HKSAR v Ta Dinh Son [2014] HKCA 17, CACC 348/2013 reviewed various cases and observed that, generally, for a first conviction, the starting point after trial is one of 27 months’ imprisonment[1],
16. Bearing in mind the circumstances in the present case, I find that 27 months’ imprisonment is the proper starting point for both charge 2 and 3.
Aggravating factor
17. I find the defendant’s conviction record an aggravating factor, in particular of the fact that this is her 4th and 5th conviction for the same offence. The defendant is a repeated offender.
18. I am, however, mindful of the fact that the second and third breach of deportation order convictions were related to the 2011 conviction. For that reason, the enhancement is lower than it would be had they been entirely separate offences.
19. For the above mentioned aggravating factor, I will enhance each of the starting points by 3 months’ imprisonment, leading to a sentence of 30 months’ imprisonment.
Mitigating factor
20. The fact that the defendant’s son was on trial in Hong Kong does not excuse the defendant’s disregard of the deportation order.
21. Although I do sympathize with the defendant’s personal circumstances, I find that they are not such that would warrant a discount in sentence. The only mitigating factor is her plea of guilty.
22. The defendant had indicated that she will be pleading guilty to the breach of deportation charges at the earliest opportunity. She is therefore entitled to the full one-third discount.
23. The sentences for charge 2 and 3 are, therefore, 20 months’ imprisonment after plea.
Totality
24. The defendant committed the first breach on 16th June 2017. That was when she entered Hong Kong via the airport.
25. 10 days later, she left Hong Kong via the China Hong Kong Ferry Terminal. She re-entered Hong Kong just 1 day later via the same Terminal. This entry constituted the second breach.
26. The defendant committed the second breach so that she would be able to continue to stay in Hong Kong, despite the fact that she knew she was not supposed to be in Hong Kong in the first place.
27. The defendant showed a total disregard for the deportation order against her, not once, but twice.
28. Taking a step back, I order that 4 months of the sentence in charge 3 be served consecutively to the sentence in charge 2, the balance to be served concurrently.
29. The total final sentence for the two charges is 24 months’ imprisonment.
| |
(Douglas T.H. Yau) |
| |
District Judge |
[1] “17. So what is the appropriate starting point for an offence under section 43(1)(a) of Cap. 115? We have not heard argument upon the issue and there may be cases where the offence for which, or the circumstances in which, the deportee has been removed pursuant to a deportation order are such as to make a first breach particularly serious but it would seem that, generally, for a first such offence, the starting point after trial which has been adopted is one of 27 months’ imprisonment: see Beeson J in HKSAR v Gabriel Malou Lantin, [2004] HKEC 1072 : “The authorities indicate a first offence of breach of deportation order, the starting point of 27 months would be appropriate”; and HKSAR v Mohamed Malurdeen Mohamed Riyaz [2003] HKEC 1091, per Deputy Judge Longley. See also HKSAR v Joned Asri CACC 345 of 2012, unreported 17 April 2013, where the assumption seems to have been made that 27 months after trial for a first offender was appropriate. The suggestion in that case (at para 19) that “the enhanced starting points ought to have flattened out after the fifth breach, that is, at 42 months’ imprisonment” was expressly stated to relate to the facts of that case. Given that the maximum term for the offence is 7 years’ imprisonment, there is no ceiling at 42 months established by that judgment, though whether that sort of level might appropriately be exceeded must yield to the circumstances of the particular case.”, per Stock VP in HKSAR v Ta Dinh Son [2014] HKCA 17, CACC 348/2013.
|