HKSAR v. HEMCHAIANAN PIMPISA (also known as THANATCHA HEMWICHIT, HEMWICHIT THANATCHA, NAMFON PHAKALONG, DARIN HEMWICHIT and PRAWG THIP HEMWIJIT)

DCCC 501/2024

[2025] HKDC 290

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 501 OF 2024

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REASONS FOR SENTENCE

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1.   The defendant was charged with a total of 11 counts of breach of deportation order, contrary to Section 43(1)(a)  of the Immigration Ordinance, Cap 115. Upon plea bargaining, the defendant pleaded guilty to Charges 1 to 3 and 9 to 11, a total of six counts and was convicted accordingly. The remaining charges are left in court file.

Brief Facts

2.   On 12 October 2016, a deportation order under reference number SF(D)  15824 was issued against the defendant under the name of Thanatcha Hemwichit (with other alias)  requiring the defendant to leave Hong Kong and prohibiting her from being in Hong Kong at any time thereafter. Defendant received a copy of the said deportation order on 24 October 2016 and acknowledged receipt thereof by appending her signature on the said order. The defendant was deported from Hong Kong to Thailand on 26 October 2016.  The said deportation order remains in force at all times. 

3.   On 11 December 2023, the defendant arrived in Hong Kong via Heung Yuen Wai Control Point with a Thai passport under the name of Hemchaianan Pimpisa.  Upon investigation, it was revealed that the defendant is a subject of deportation order for life. On 19 December 2023, the defendant was arrested (the court asked and was told that the offence was discovered when the defendant went to the marriage registry and presented her current passport). 

4.   Fingerprint comparisons confirmed that the defendant who was arrested on 19 December 2023 was the same person who used other names, against whom the deportation order of 12 October 2016 was issued.

5.   The defendant’s traffic movement records revealed that the defendant came to Hong Kong and was granted permission to land on the strength of a Thai passport under the name of Hemchaianan Pimpisa on 6 occasions, namely, on 26 June 2017 (Charge 1); 21 June 2018 (Charge 2); 15 December 2022 (Charge 3); 12 November 2023 (Charge 9); 27 November 2023 (Charge 10); and 11 December 2023 (Charge 11). 

Mitigation

6.   It was submitted that the defendant made a timely guilty plea for which she is entitled to have a one-third discount in sentence. That also shows the remorsefulness of the defendant, even though the defendant was discovered to have entered Hong Kong on a total of 11 occasions. 

7.   The defence submitted that the starting point for a first offender should be one of 27 months’ imprisonment.  The starting point for each breach should then be increased but should not exceed 42 months: HKSAR v Ta Dinh Son [2014] 3 HKC 529 and HKSAR v Joned Asri CACC 345/2012. The defence asked for a more lenient sentence. 

8.   The defendant’s mitigation letter to which some photos are attached was tendered.  Today, defence counsel said the defendant’s partner, Mr Woo, is present in court, and a mitigation letter for the defendant was presented. 

Sentence

9.   The maximum sentence for the offence is one of 7 years.  The defendant received the deportation order on 24 October 2016, and was deported back to Thailand on 26 October 2016.  And surprisingly, under this computer age, the defendant managed to return to Hong Kong repeatedly, presumably, starting from 26 June 2017 (Charge 1). There seems to have no evidence to suggest that the defendant was using a false passport.  Apparently, the defendant might just apply for another passport under different names.  In fact, the prosecution informed the court that the defendant changed her name in Thailand, and then applied for a new passport with the new name. The fact that the defendant committed similar offences repeatedly can be taken as a flagrant defiance of the law, and a deterrent sentence was called for. 

10.   The defendant is not a first offender as starting from October 1996, she had a total of 9 convictions with 3 similar. In the present case, the defendant was facing a total of 6 convictions. The Court of Appeal has said that the ultimate sentence, after enhancement, must be proportionate to the seriousness of the offence, reserving the maximum penalty for worst cases of its kind: paragraph 16 of the judgement of Joned Asri.

11.   The mitigation letters from the defendant and Mr Woo have no substantial mitigating effect.  If Mr Woo has been acquainted with the defendant for more than a decade, he should have known some, if not all, of the defendant’s background. Mr Woo said the defendant expressed genuine remorse and he is confident the defendant will learn from this experience and become an even better person moving forward.  The irony is that the defendant had 9 previous convictions and 3 similar.  She had committed similar offences on 11 occasions even though she pleaded guilty to 6.

12.   In any event, the defendant can get one-third discount in sentence due to her pleas.  I would take a simplistic approach in sentencing. I adopt a starting point of 39 months for each of these 6 offences, and with the guilty plea, the sentence is reduced to 26 months. All sentences are to be served concurrently. 

13.   In passing, it is surprising to see that a person convicted of breach of a deportation order can easily circumvent the effect of the deportation and prohibition by simply changing her name. For some reasons unknown, that person can easily change her name and apply for a new passport in her homeland.  Like other countries, say Japan, visitors are required to provide their fingerprints of at least 2 fingers.  I am sure that can drastically reduce the chance of this kind of repeated breach of deportation order. I also expect authorities in Hong Kong will duly inform their counterparts in Thailand about the defendant’s repeated change of her name and the application for a different passport.  There must be something fishy.