HKSAR v. IMPILLO ROLANDO

HCMA790/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.790 OF 2000

(ON APPEAL FROM SPCC 4768 OF 2000)

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J U D G M E N T

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1. This is an appeal against sentence of 12 months' imprisonment imposed upon this appellant who pleaded guilty to an offence of being in Hong Kong in contravention of a deportation order.

2. The appellant is a national of the Philippines. In January 1997, he was made the subject of a deportation order. On 6 July this year, he was arrested by the police after a complaint of theft. That complaint was not substantiated, but when the police checked his details they discovered that the defendant had been convicted of theft in Hong Kong in 1996, and had been made the subject of a deportation order.

3. The magistrate said that the appropriate sentence on a plea of guilty for this offence was 12 months' imprisonment. He referred to a number of previous cases which tend to support that range of sentence. In my judgment, the nature of the offence and the penalties provided by the legislature also support a sentence of that kind for a first offence upon a plea of guilty. It is not to be overlooked that the maximum penalty for this offence is seven years' imprisonment; that is upon indictment, but nonetheless that is the maximum. Upon summary conviction, the maximum term is one of three years' imprisonment. A sentence of 12 months, after a plea of guilty, assumes a starting point before plea, and absent other mitigating factors, of 18 months' imprisonment. Every case must of course be examined in its own light and facts rather than mechanically, but as a starting tariff after plea, that seems to me to be about right.

4. A breach of a deportation order is a calculated snub at an executive decision which tells a deportee that he or she is not only not entitled to enter this territory, but must on no account do so whilst that deportation order is alive. It is a matter which goes beyond a mere unlawful entry; for not only is the entry unlawful, it is entry by a person who has been deemed by full consideration to be not merely a person without permission to come to Hong Kong but an undesirable and unwanted candidate for entry. The person who breaches that order does so calculatingly, and interferes with a fundamental tool by which those considered undesirable entrants to this territory are notified that they must stay away. There are a number of cases which showed that the courts consider a term of at least 12 months' imprisonment after plea to be the appropriate sentence in such cases, assuming no special mitigation circumstances beyond the plea of guilty. In the case of those who have previously breached Hong Kong's immigration laws, the sentence, in my judgment, should be higher than that.

5. In my judgment, there is nothing at all in this appeal against sentence and it is dismissed.