HKSAR v. MOHAMMED QAMAALUDDIN AHMED AND OTHERS

DCCC531/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 531 OF 2012

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Reasons for Sentence

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1.  In these proceedings, the defendant, Mohammed Qamaaluddin Ahmed, also known as Quadri Kamal Uddin, Uddin Mohammad Sousuf, Aleemuddin Mohemed, Mohammed Yousufuddin, Sousuf Uddin Mohammad and Mohammed Aleemuddin, faced a total of 18 counts of “breach of deportation order”, contrary to section 43(1)(a) of the Immigration Ordinance, Chapter 115, Laws of Hong Kong. He pleaded guilty to all the charges and was convicted upon his plea and admission of facts.

Facts

2.  The facts reveal that sometime after midnight on 20 April 2012, the defendant was found acting suspiciously at Queen’s Road West by the police.  He was stopped and asked to show his document of identity.  He produced a passport under the name of Mohammed Qamaaluddin Ahmed, showing he came to Hong Kong on the 17th day of March 2012. He was allowed to stay until 31 March 2012.  He was therefore arrested for overstaying.

3.  Further investigation revealed that the defendant had been known also as Quadri Kamal Uddin who was subject to a deportation order issued on 14th October 2003. Under caution, he admitted that he first came to Hong Kong in 1993 and had been deported.  He then used the name of Quadri Kamal Uddin to enter Hong Kong between 1993 and 2002. Since June 2011, he had been using the name of Mohammed Qamaaluddin Ahmed to come to Hong Kong. He changed his name to apply for a passport because he knew that he was subject to a deportation order in Hong Kong.  He claimed that he came to Hong Kong for sightseeing and had forgotten about the expiration date of his visa.

4.  Upon further questioning under caution he admitted he came to Hong Kong with a passport bearing the name of Mohammed Qamaaluddin Ahmed. Immigration record revealed that the defendant entered and left Hong Kong under that name on 35 occasions between the 11^th day of June 2011 to 17^th March 2012: 18 of which were arrivals and 17 departures.  He also admitted that he understood the effect of a deportation order in that he was prohibited from being in Hong Kong at any time thereafter. Presumably that was why he changed his name to apply for a passport.  He professed that he liked Hong Kong very much.  That is why he came to Hong Kong in defiance of the Prohibition Order.

5.  The present charges were about the 18 occasions in which he came to Hong Kong by using the passport in the name of Mohammed Qamaaluddin Ahmed.  The passport was confirmed to be genuine in that it was issued by the Indian authorities.

Authorites

6.  Offences of this kind are serious in Hong Kong. The maximum sentence in the statute book is 7 years of imprisonment.  As has been summarised by the editors of Archbold Hong Kong 2012, at paragraph 27-156:

“This offence is most serious in the offence of unlawful remaining in Hong Kong. A sentence of 18 months’ imprisonment after plea for a first offender of this type could not be criticised. A sentence of 21 months’ imprisonment may be justified for a second breach, and for a persistent offender who has been convicted of other immigration offences before and coupled with a history of breaching deportation orders, the maximum available sentence should be taken as the starting point. As was shown in the case of Nguyen Tuan Anh (unreported) HCMA1091/2003, [2004] HKEC 30, a starting point of 3 years taken by the magistrate was held not to be excessive even though offence was tried summarily as the case involved an offender, a persistent offender with a history of breaching deportation orders and committing offences under Cap.115.”

7.  In fact, the editors of Archbold went on further to say:

“In dealing with a persistent and contumelious offender, a prosecution in the District Court should be considered where the offender will receive a more severe sentence or indictment for further deterrence.”

8.  The prosecution have kindly drawn my attention to two recent authorities decided by the Court of Appeal.  In the case of Nguyen Anh Cuong CACC414/2011, the learned appeal judges were asked to deal with an appeal from the District Court against a defendant on five charges of conspiracy to steal and two offences under the Immigration Ordinance, one of which being breach of a deportation order. 

9.  In the judgment, the learned appeal judge had observed that:

“16...this was the fourth time that the applicant had breached the deportation order for which he had demonstrated ‘an alarming level of persistence.’ He took a starting point for this charge of 30 months’ imprisonment, which he reduced by one-third to 20 months for the plea of guilty. He then ordered the two sentences in respect of Charges 8 and 9 to run concurrently with each other but consecutively to the sentences on Charges 1 to 5, making an overall sentence of 64 months. It is against that sentence that the applicant now appeals...

17. We say at once that the overall sentence of 44 months’ imprisonment, duly (and appropriately) enhanced in respect of the five conspiracy-to-steal charges, was in no way manifestly excessive...

18. However, what causes us particular disquiet in this case is the fact that this is the fourth time the applicant, a native of Vietnam, has breached his deportation order. He first breached the order in 2004 when he was found unlawfully in Hong Kong in possession of a forged Hong Kong ID card. He breached it a second time in 2005 when again found unlawfully in Hong Kong, at which time he was arrested for going equipped for stealing. His third breach of the order was in 2008 when yet again he was found unlawfully in Hong Kong and was arrested for theft. This is the fourth time he has breached the order and the third time he has appeared before the courts for breaching the order in conjunction with an offence of dishonesty. It is not difficult to see the applicant has not merely displayed a persistent contempt for Hong Kong’s immigration laws but that an incident of his coming here, if not his underlying purpose, has been to steal.

21. It should be remembered that the maximum sentence for breaching such an order under section 43(1)(a)(i) of the Immigration Ordinance is 7 years’ imprisonment on indictment. The applicant must understand that if he unlawfully enters Hong Kong again in defiance of the deportation order, a starting point well in excess of 3 years’ imprisonment for this offence alone is likely to be adopted.”

Sentencing Considerations

10.  In this case, I am dealing with 18 counts of breach of deportation order.  On 18 different occasions, the defendant had acted in defiance of a deportation order imposed against him on the 14th day of October 2003.  His behaviour showed a persistent contempt and a cynical disregard of the laws of Hong Kong.  It is true that he was not caught during this period of time. He was caught for overstaying. That does not make the offence less serious.

11.  The defendant is no stranger to the law. Between 1994 and 2003, on no less than five occasions the defendant had been convicted of offences relating to immigration legislations.  Therefore, he could not expect leniency as can a person of previous good character.  It is true that there is no evidence that the defendant had come to Hong Kong with intention of committing crime, yet the mere fact that he had been in breach of the Hong Kong law repeatedly is something this court must take into consideration.  I think it is important that this court must send out a clear message to the society that such behaviour will be severely punished.

12.  Having considered the authorities shown to me and that cited and discussed by the editors of Archbold, I consider a starting point of 36 months’ imprisonment appropriate in the circumstances.  Since the defendant has pleaded guilty, it will be reduced to 24 for each count.

Mitigations

13.  I turn to consider the submissions put forward by the defence lawyer.  The personal circumstances which have been put forward to this court, in my view, are not valid mitigating circumstances.  This court is sympathetic to his family in India for they will be left on their own now he is serving time in Hong Kong. Yet the defendant can only have himself to blame. He had come to Hong Kong unlawfully not only once but 18 times.

14.  For the reasons stated above, I will order a term of imprisonment of 24 months for each count to run concurrently in all 18 charges.  In all, the defendant is to serve 24 months’ imprisonment.