HKSAR v. PULIDO RANNIE LAIG

DCCC 450/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 450 OF 2016

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Reasons for Sentence

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1.   The defendant pleaded guilty to a total of 15 counts of breach of deportation order, contrary to Section 43(1)(a) of the Immigration Ordinance, Cap 115.  The deportation order was dated 17 June 1999. 

2.   The dates of the offences are listed hereunder:

(1) 27 January 2015;

(2) 9 February 2015;

(3) 10 April 2015;

(4) 23 April 2015;

(5) 12 October 2015;

(6) 23 October 2015;

(7) 4 November 2015;

(8) 16 November 2015;

(9) 27 November 2015;

(10) 8 December 2015;

(11) 27 January 2016;

(12) 3 February 2016;

(13) 15 February 2016;

(14) 26 February 2016; and

(15) 18 March 2016.

The Prosecution case

3.   The defendant was intercepted at Lo Wu Terminal when he attempted to leave Hong Kong on 21 March 2016 using a passport of the Republic of the Philippines (numbered EB4964210) in the name of Pulido Rannie Laig (ID-1).

4.   By means of fingerprint comparison, it was revealed that the defendant was the subject of a deportation order in the name of Navales Felix Generalao (ID-2) on 17 June 1999.  The said deportation order prohibits the defendant from being in Hong Kong at any time thereafter. The defendant was given notice of the said order and was deported back to the Philippines on 27 July 1999.

5.   The travel index record revealed that the defendant had used ID-1 to enter Hong Kong 15 times between 27 January 2015 and 18 March 2016.  The movements are as follows.

6.   On 27 January 2015, the defendant entered into Hong Kong via the Hong Kong Airport using the abovementioned passport.  He left Hong Kong on 9 February 2015 via Lo Wu Terminal (1st charge).

7.   On 9 February 2015, the defendant used the same passport to enter Hong Kong via Lo Wu Terminal.  He left Hong Kong on 17 February 2015 via the Hong Kong Airport (2nd charge).

8.   On 10 April 2015, the defendant used the same passport to enter Hong Kong via the airport.  He left Hong Kong on 23 April via Lo Wu Terminal (3rd charge).

9.   On 23 April 2015, the defendant used the same passport to enter Hong Kong via Lo Wu Terminal.  He left Hong Kong on 2 May 2015 via the Hong Kong Airport (4th charge).

10.   On 12 October 2015, the defendant used the same passport to enter Hong Kong via the Hong Kong Airport.  He left Hong Kong on 23 October 2015 via Lo Wu Terminal (5th charge).

11.   On 23 October 2015, the defendant used the same passport to enter Hong Kong via Lo Wu Terminal.  He left Hong Kong on 4 November 2015 via Lo Wu Terminal (6th charge).

12.   On 4 November 2015, the defendant used the same passport to enter Hong Kong via Lo Wu Terminal.  He left Hong Kong on 16 November 2015 via Lo Wu Terminal (7th charge).

13.   On 16 November 2015, the defendant used the same passport to enter Hong Kong via Lo Wu Terminal.  He left Hong Kong on 27 November 2015 via Lo Wu Terminal (8th charge).

14.   On 27 November 2015, the defendant used the same passport to enter Hong Kong via Lo Wu Terminal.  He left Hong Kong on 8 December 2015 via Lo Wu Terminal (9th charge).

15.   On 8 December 2015, the defendant used the same passport to enter Hong Kong via Lo Wu Terminal.  He left Hong Kong on 15 December 2015 via the Hong Kong Airport (10th charge).

16.   On 22 January 2016, the defendant used the same passport to enter Hong Kong via the Hong Kong Airport.  He left Hong Kong on 3 February 2016 via Lo Wu Terminal (11th charge).

17.   On 3 February 2016, the defendant used the same passport to enter Hong Kong via Lo Wu Terminal.  He left Hong Kong on 15 February 2016 via Lo Wu Terminal (12th charge).

18.   The CCTV footage at the Lo Wu Terminal revealed that it was the defendant who used ID-1 to enter Hong Kong at about 1529 hours on 3 February 2016.

19.   On 15 February 2016, the defendant used the same passport to enter Hong Kong via Lo Wu Terminal.  He left Hong Kong on 26 February 2016 via Lo Wu Terminal (13th charge).

20.   On 26 February 2016, the defendant used the same passport to enter Hong Kong via Lo Wu Terminal.  He left Hong Kong on 28 February 2016 via the Hong Kong Airport (14th charge).

21.   On 18 March 2016, the defendant used the same passport to enter Hong Kong via the Hong Kong Airport.  He stayed till and attempted to leave Hong Kong on 31 March 2016 via Lo Wu Terminal (15th charge).

22.   Under caution, the defendant claimed that ID-1 is his “genuine identity”.  He was in Hong Kong on 21 November 2015 (8th charge), 3 December 2015 (9th charge) and 17 February 2016 (13th charge) respectively.

Mitigation

23.   Mr Yuen, defence lawyer, submitted in court a written submission on mitigation.  The defendant is a Philippines national and is aged 47.  He is married and has five children.  The defendant is the sole breadwinner of the family and he operated a chicken farm in the Philippines, with the average income of about US$200 to US$300 per month.  It was said that the defendant came to Hong Kong for the purpose of going to China to purchase goods such as clothes, shoes and bags for resale in the Philippines.

24.   The most significant mitigation factor is the defendant’s guilty pleas to all the charges.

25.   The defence referred to HKSAR v Joned Asri, CACC 345/2012, and HKSAR v Delante Antonio Jr Arana, DCCC 59/2016, for reference.

26.   The defence also tendered the defendant’s own mitigation letter and submitted that “if the court is minded to enhance the overall starting point because of the previous conviction of the defendant, it shall not exceed 30 months.”

Sentence

27.   Defendant is a national of the Philippines and aged 47.  He claimed to be a retail seller in the antecedent statement and refused to disclose his education background and health condition. 

28.   The defendant has various aliases, but the criminal record of the defendant, for some reasons unknown to this court, only states that the name of the defendant is Navales Felix Generalao.  He had five previous convictions back in 1998 with two similar. 

29.   Upon enquiry, this court was informed by the prosecution that in February 2004, when the defendant was convicted of one count of breach of deportation order and was sentenced to 12 months’ imprisonment, the defendant was using the passport in the name of Asinero Jeffrey Taga Amo, while in December 2010 the defendant was convicted of the same offence when he used the passport of another name, Cruz Mario Jr Reyes.

30.   I was told that the Philippines consulate in Hong Kong could not say if the passports so used were false or not.  Hence, the defendant literally was using passports of four different names.

31.   A further check with the TIC of the defendant (Exhibit MFI-1) shows that, before the date of offence of the first charge in this charge sheet (that is, 27 January 2015), the defendant had been entering Hong Kong on six occasions from October 2008 to October 2010.  This court was told that the defendant was using the passport in the name of Pulido, but with different passport number.  These six entries were not subject of any charges.

32.   This background information shows that the defendant is in blatant disregard of the deportation order issued in 1999. He was able to use various means and various passports to manipulate the loopholes of the current Immigration control mechanism or checking. 

33.   There is no information as to where did the defendant stay in Hong Kong and what did he do, but, from the facts of this case, it is abundantly clear that the defendant spent more time in Hong Kong, relatively speaking, on these 15 occasions.  His departures from Hong Kong might have something to do with the restrictions of stay in Hong Kong for tourists.

34.   Be that as it may, it is clear that the defendant is not just a repeat offender.  He also used various passports under at least four different names to enter into Hong Kong.  I would not speculate if the defendant also used passports of any other names to enter Hong Kong in order to circumvent the effect of the deportation order.

35.   I have considered the sentencing considerations as elicited in HKSAR v Joned Asri, CACC 345/2012, whereby the appellant, who faced 10 counts of the same offence, was given a total of 33 months.

36.   In HKSAR v Ta Dinh Son, CACC 348/2013, where the appellant was charged, inter alia, with one count of a breach of deportation order, the Court of Appeal said at paragraph 20 of the judgment: 

“The aggravating features were significant. This was not less than the seventh occasion of coming back into Hong Kong in breach of the deportation order and it is clear that the slightly increased sentences on some of the previous convictions have served not a jot to deter the applicant. We think for the Section 43 offence, the appropriate (aggravated) sentence before discount for the plea was one of 4 years’ imprisonment. We will take a point of 42 months as the point before deduction for the plea. Giving credit for the plea of guilty, the appropriate sentence for the Section 43 offence is one of 28 months’ imprisonment.”

37.   In the present case, the aggravating features are obvious.  The defendant used a passport under a different name from the deportation order.  Between January 2015 and March 2016 the defendant used the same passport to enter and leave Hong Kong as he wanted on 15 occasions.  That was done on top of the other six occasions prior to January 2015, as shown in the TIC record.  The defendant had two similar convictions and, worse still, he was using passports of two different names.  The 12 months’ imprisonment imposed earlier on apparently could not serve “a jot to deter” the defendant.

38.   In his mitigation letter, the defendant tendered “the deep and sincere apology” for breaching the deportation order, and he regretted for the suffering that his family has to bear because of his wrongdoing.

39.   But the defendant’s wrongdoing, as far as the present case is concerned, started from July 1999, and I have no clue as to whether the defendant’s wrongdoing would end in March 2016 once and for all.

40.   As the defendant may well know, the most important mitigating factor is his guilty plea, for which he is entitled to get one-third discount in sentence, even though the evidence against him is overwhelming.

41.   In my view, to simplify the sentencing process, I would adopt a global approach to take into account of all the similar offences in the charge sheet, instead of considering a sentence for each and every count of the offence.

42.   Taking all factors into account, especially the fact that the defendant being a repeat offender, I would adopt a starting point of 3½ years (42 months) for each and every count.

43.   Given his plea, I sentence the defendant to an imprisonment term of 28 months for each count, and the sentence is to be served concurrently.