HKSAR v. SRIATUNINGSIH (ALSO KNOWN AS SRIATUNINGSIH LASIYO AND LASIYO SRIATUNINGSIH)

DCCC 230/2019

[2019] HKDC 955

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 230 OF 2019

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to five charges of breach of deportation order, contrary to section 43(1)(a) of the Immigration Ordinance[1].

2.  In summary in January 2006 the defendant under the identity Sriatuningsih Lasiyo was convicted and sentenced to imprisonment for offences contrary to the Immigration Ordinance. 

3.  On 27 April 2006 the defendant was made the subject of a deportation order prohibiting her from coming to Hong Kong for life.  The deportation order was served on the defendant on 8 May 2006 and she was deported the same day.

4.  On 27 December 2018 the defendant presented Indonesian passport in the name of Sriatuningsih for arrival clearance at Hong Kong-Zhuhai-Macao Bridge Control Point.  The defendant was refused entry when secondary examination revealed that the defendant was a returned deportee.    

5.  The defendant was found in possession of four landing slips showing she had entered Hong Kong on 28 May 2018, 20 August 2018, 15 October 2018 and 2 November 2018 using the identity Sriatuningsih.  The movement record showed the defendant had entered Hong Kong on those dates using the identity Sriatuningsih.

6.  Under caution the defendant admitted she was served with the deportation order and that she was informed she was not allowed to enter Hong Kong again thereafter.

Mitigation

7.  In passing sentence, I have carefully considered the oral and written submissions of Mr Davies, including that the defendant is the sole supporter of her family in Indonesia and remits most of her money earnt working in a hotel in Macao to her family in Indonesia[2].

8.  I have read the mitigation letter written by the defendant in which she begs for a lenient sentence so she can continue to support her mother.

9.  Mr Davies submits that on each occasion the defendant entered Hong Kong she used a genuine passport in her own nameand did not attempt to mislead the Immigration Officer regarding her identity[3].   

10.  I have no hesitation in rejecting this submission.  The defendant did not enter Hong Kong in the name under which she was deported.  The defendant entered using a different name, albeit a similar name, to the name under which she was deported.   

11.  Clearly this misled the Immigration authorities who only detected the breach of the deportation order after the defendant had repeatedly entered Hong Kong.

12.   Mr Davies submits that the defendant clearly misunderstood the extent of the deportation order and the fact that she was permitted to enter Hong Kong led her to believe the order did not apply for short visits or transit[4].

13.  The immigration records submitted by Mr Davies show that on each occasion the defendant only remained in Hong Kong for a short time, ranging from just over one hour to just less than thirty-six hours[5].

14.  The immigration records also show that the defendant appeared to have entered Hong Kong on sixteen other occasions between 15 April 2012 and 19 March 2018.   I make clear the defendant is to be sentenced only on the breaches for which she has been charged.

15.  I have no hesitation in rejecting the submission the defendant misunderstood the extent of the deportation order and was led to believe the order did not apply for short visits or transit.  Under caution the defendant admitted she was informed she was not allowed to enter Hong Kong.      

Sentence

16.  There are no guideline sentences for breach of deportation order.  Generally the starting point for a first breach is one of 27 months imprisonment[6].    

17.  Mr Davies submits that the defendant having neither stayed for long periods of time or sought employment the circumstances are not similar to the usual cases and therefore a lower starting point should be adopted[7]. 

18.  I disagree.  This is not a single isolated occasion where the defendant was in transit.  The defendant repeatedly entered Hong Kong in breach of the order. 

19.  In HKSAR v Joned Asri the Court of Appeal said that it was not open to the applicant, who was charged with ten charges of breach of deportation order, to use the fact of late detection in his favour when it came to sentencing and that the sentencing judge had correctly taken into account the fact that the applicant was a repeat offender [8].

20.  The defendant has breached the deportation order five times.  Repeat offending is a significant aggravating feature justifying enhancement of the starting point of 27 months’ imprisonment. 

21.  In HKSAR v Joned Asrithe Court of Appeal held that starting points of 27 months, 30 months, 36 months and 42 months were appropriate for the first five breaches[9].

22.  I am satisfied a starting point of 42 months’ imprisonment is appropriate for charge 1; 27 months for charge 2, 30 months for charges 3 and 4 and 36 months for charge 5. 

23.  Giving the defendant full credit for her pleas of guilty she is convicted and sentenced to 28 months’ imprisonment on charge 1, 18 months’ imprisonment on charge 2, 20 months’ imprisonment on charges 3 and 4 and 24 months’ imprisonment on charge 5.

Totality

24.  In HKSAR v Joned Asrithe Court of Appeal ordered concurrent sentences for the first five breaches.  This order must however be viewed in the context that the court was dealing with ten charges. 

25.  Taking into account the time the defendant stayed in Hong Kong on each occasion I am satisfied a total sentence of 28 months’ imprisonment properly reflects the defendant’s criminality on the five charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[10]. 

26.  Accordingly, I order all sentences to be served concurrently.

27.  The defendant is sentenced to a total of 28 months’ imprisonment.