HKSAR v. GURUNG RAM BAHADUR (also known as MAN Bahadur Gurung and GURUNG Man Bahadur)

DCCC 167/2020

[2020] HKDC 627

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 167 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant, a 49-year-old Nepalese man, pleaded guilty before me to 6 counts of breach of deportation order, contrary to section 43(1)(a) of the Immigration Ordinance.

2.  In 1993, the defendant first came to visit Hong Kong with a Nepalese passport, but in October the same year he was sentenced by a local court to 6 months’ imprisonment for the offence of drug trafficking. After serving the sentence, he was deported to his home country (Nepal) on 20 January 1994 under a deportation order which has remained in force up to now.

3.  The defendant having been ordered to leave had returned to Hong Kong in breach of the deportation order at least six times in the subsequent years, thus forming the subject matters of the six charges:

Charge 1 – 2 February 2013;

Charge 2 – 6 July 2013;

Charge 3 – 23 November 2013;

Charge 4 – 2 March 2014;

Charge 5 – 9 February 2018;

Charge 6 – 20 January 2020.

4.  In July 2011, the defendant applied for a dependant visa, which was approved by the Immigration Department on 8 November 2012, to join his wife in Hong Kong using a new identity - a slightly different name and a different date of birth (three years younger than the one before).

5.  On 2 February 2013 (Charge 1), the defendant successfully re-entered Hong Kong using a Nepalese passport with the new identity; two days later, he was able to obtain a Hong Kong identity card with this new identity and in the ensuing months till the end of 2013, he had used the ID card to travel in and out of Hong Kong three times (Charges 2, 3, 4).

6.  On 9 February 2018 (Charge 5), the defendant was arrested by customs officers in Jordan, Hong Kong for matters not relating to the deportation order and was later released on bail. About a week later, he left Hong Kong.

7.  His breach of the deportation order was not discovered until almost two years later when he tried to get back in Hong Kong on 20 January 2020 (Charge 6), he was then arrested at the airport for breaching deportation order.

8.  The defendant has only one prior conviction, i.e., drug trafficking back in 1993 for which he was given a jail term of six months.

9.  In mitigation, the court heard that the defendant has had two marriages, he has three children (aged 15, 21, 22) all in Nepal from his first marriage; whilst for the second marriage, they have been married for 9 years, his current wife is now living in the UK.

10.  The defendant had a tough upbringing, counsel for the defendant, Mr Surman said, he came from the mountain areas, and did not receive any formal education and is an illiterate. As far as health is concerned, the defendant is suffering from diabetes and asthma which present no major problem at the moment having been medically taken care of while in custody.

11.  Mr Surman said that the defendant committed no further offences after wrongfully entering Hong Kong, and he was only sitting around and would like to return to Nepal at the first opportunity.

12.  When speaking of the sentences, Mr Surman proposed the following sentences citing in support the case of Joned Asri CACC 345/2012, the individual sentences after plea for the six charges should be 18, 20, 20, 24, 28, 28 months’ imprisonment (adopting the same individual sentences as in Asri case) and asked the court to pass an overall concurrent sentence of 28 months.

13.  However, I do not think it right to have all the sentences made concurrently for I am of the view that notwithstanding a smaller number of charges, the overall criminality of the present case is no less, if not worse, than that of the Asri case.

14.  The Court of Appeal in Asri case held that while accepting that a sentencing judge may enhance the starting point of any subsequent charges for a repeat offender, it is not permissible to keep enhancing until one reaches the maximum term of the offence because such term is reserved only for the worst of its kind, and an offence does not become one just by mere repetition.

15.  In Asri case, the appellant faced 10 charges of breach of deportation order all of which were committed over a period of 20 months. Here in the present case, the defendant committed six within the space of 7 years. Comparatively speaking, the defendant had spent more time remaining in Hong Kong than the one in Asri case.

16.  The offence of breach of deportation order is a continuing one –so long as those served with the deportation orders remain in Hong Kong, they are in breach of the order and thus continue to commit the offence until the time they are deported.

17.  I would adopt a similar approach as the Court of Appeal did in Asri case. Having given a one-third discount, the individual sentences for the six offences are as follows:

Charge 1 – 18 months;

Charge 2 – 20 months;

Charge 3 – 20 months;

Charge 4 – 24 months;

Charge 5 – 28 months;

Charge 6 – 28 months;

And I order the terms for the first five breaches to run concurrently with one another but consecutively to 2 months of the last, the total term is one of 30 months.

18.  Insofar as mitigation is concerned, there isn’t anything of substance besides his guilty pleas.  There being no reasons for any further reduction in sentence, the defendant is therefore sentenced to 30 months’ imprisonment.