HKSAR v. TARVEZ AMEN ALSO KNOWN AS JAME AHMED

DCCC 429/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 429 OF 2014

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REASONS FOR SENTENCE

1.  Tarvez Amen you have pleaded guilty to seven charges of breach of deportation order, contrary to section 43(1)(a) of the Immigration Ordinance.

2.  In summary on the 20 February this year you were intercepted by the police on suspicion of having overstayed.  As you could not produce any travel document or identity papers you were taken to the Wan Chai Police Station.  A friend of yours brought to the police station your passport in the name of Tarvez Amen. 

3.  Your fingerprints matched those of Jame Ahmed, against whom a deportation order was made dated the 28 July 2003 prohibiting Jame Ahmed from entering Hong Kong for life.   

4.  Investigation revealed in breach of that order you came to Hong Kong in 2006 and 2013 using the passport in the name of Tarvez Amen.  Between 10 May and 28 June 2006 you came to Hong Kong five times (charges 1-5) and last year you came twice with the last entry being on the 17 April 2013 (charges 6-7).  Under caution you admitted using the passport in the name of Tarvez Amen to enter Hong Kong having been deported in 2003 when using the name Jame Ahmed. 

5.  In passing sentence I have carefully considered everything said on your behalf by Mr Middleton, including that you have an eight year old son in Bangladesh.    

6.  There are no guideline sentences for breach of deportation order.  Generally for a first breach the starting point after trial is one of  27 months imprisonment (see for example HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762; HKSAR v Gabriel Malou Lantin HCMA 716/2004; and HKSAR v Ta Dinh Son CACC 348/2013). 

7.  Although this is the first time you have appeared in court for breach of the deportation order you are not to be treated as a first offender, save for the first entry. As already noted you entered Hong Kong in breach of the order five times in 2006 and twice in 2013 under a different name so as to evade detection by the authorities.  Repeat offending is an aggravating feature justifying enhancement of the starting point of 27 months imprisonment. 

8.  In HKSAR v Joned Asri CACC 345/2012 the applicant in breach of a deportation order entered Hong Kong ten times over a period of 18 months.  The facts of that case are similar to the present case in that the applicant also used a different name to enter Hong Kong so as to evade detection by the authorities.  The Court of Appeal taking into account the repeated breaches held the appropriate sentences after trial were between 27 and 42 months imprisonment.  In HKSAR v Ta Dinh Son the Court of Appeal held that 4 years imprisonment was the appropriate sentence for the 7th breach of a deportation order.    

9.  I am satisfied the proper starting point after trial for charge 1 is 27 months imprisonment which starting point is enhanced to 30 months on charges 2 & 3; 36 months on charges 4 & 5 and 42 months on charges 6 & 7.  Giving you full credit for your pleas of guilty the sentences are reduced to 18 months, 20 months; 24 months and 28 months respectively.

Totality

10.  In Joned Asri the Court of Appeal held that a total sentence of 33 months was appropriate for the ten charges.  I am satisfied a total sentence of 32 months imprisonment is appropriate and properly reflects your criminality on the seven charges.

11.  You are convicted and sentenced as follows:

Charge 1 – 1 year and 6 months imprisonment;

Charge 2 – 1 year and 8 months imprisonment;

Charge 3 – 1 year and 8 months imprisonment;

Charge 4 – 2 years imprisonment;

Charge 5 – 2 years imprisonment;

Sentence on charges 1 – 5 ordered to run concurrently

Charge 6 – 2 years and 4 months imprisonment;

Charge 7 – 2 years and 4 months imprisonment;

Sentence on charges 6 & 7 ordered to run concurrently with 8 months consecutive and 20 months concurrent to charges 1 – 5.

Total sentence to be served 2 years and 8 months imprisonment