HKSAR v. Uddin Md Mohi

DCCC 613/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 613 OF 2014

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Reasons for Sentence

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1. The defendant has been convicted on his own plea of three charges of breach of deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap 115, and one charge of making or causing to be made a false representation to an Immigration Officer, contrary to section 42(1)(a) of Cap 115.

2. The Summary of Facts state that as a result of a joint police-Immigration-Department operation on 15 January 2014, the defendant was arrested at a shop in Nathan Road, Kowloon for the offence of employing a person not lawfully employable and was subsequently convicted of that offence although I understand that conviction is the subject of an appeal.

3. A background check revealed the defendant had been made the subject of a deportation order under different names on 2 June 1997 whereby he was prohibited from being in Hong Kong for life.  The order was served on the defendant on 10 June, and he was deported on the same day.  Notwithstanding and in breach of that order, the defendant was arrested under a different name in March 2000 and deported in August 2000, arrested again in May 2001 under yet another name and deported in November 2001, and again arrested in March 2003 using another name before being deported in January 2004.  Within two months of that deportation, namely, on 25 March 2004, the defendant returned to Hong Kong and entered using yet another name, and this is the subject of the 1st charge.

4. After this entry, the defendant obtained successive renewals of his visa.  In 2006, he married a Hong Kong resident female under his current identity.  In February 2006, the defendant applied for a change of his residence status from visitor to dependant.  In that application to the Immigration Office or the Immigration Department, the defendant declared he had not changed his name and had not been deported from Hong Kong.  It is this application with these declarations which were false which form the substance of the 2nd charge.

5. Eventually, after a number of extensions of stay as a dependant, the defendant submitted an application for a permanent identity card which was issued on 20 August 2013. 

6. On 12 January 2014, the defendant entered Hong Kong under his current name or identity before being arrested on 15 January.  Following upon his arrest, the defendant was allowed bail and made another trip which caused him to re-enter Hong Kong on 2 February 2014 again in breach of the deportation order.  The entries into Hong Kong on 12 January 2014 and 2 February 2014 are the subject of the 3rd and 4th charges. 

7. The facts also show that during the period from 25 March 2004 and 2 February 2014, the defendant left and re‑entered Hong Kong for over 100 occasions.  Mr Allman-Brown, who appears for the defendant, rather candidly says the number of occasions is nearly 300, and this is according to the travel index check. 

8. The defendant has not been charged with these intervening entries into Hong Kong, all of which would be or would have been in breach of the deportation order.  The prosecution has thus elected to charge the defendant only with the entry in March 2004, the entry in January 2014 immediately preceding his arrest and the entry in February 2014, being the last entry made by the defendant prior to his remand.  It can be said therefore the charges do not really reflect the true picture or the extent to which the defendant has flagrantly breached the deportation order made against him in 1997.

9. Mr Allman-Brown has very helpfully summarised mitigation in writing.  One of the main points he raises concerns the entry into Hong Kong by the defendant in March 2004 which he says is an entry made in the defendant’s true identity as reflected by a copy of the birth certificate.  I note the birth certificate or the copy of the birth certificate shown to the court was not issued until 2012 and therefore cannot said to be the actual document used to obtain the passport in 2004.

10. At the time of his arrest, there were other passports or there were passports found in the defendant’s possession, but they were all in the same name of Uddin Md Mohi which reflects the name on this birth certificate.  I have been informed these passports all bear different dates in the sense they are replacement passports such that the defendant was not using two different passports at the same time.

11. Mr Allman-Brown has drawn my attention to the defendant’s work and family background whilst in Hong Kong.  He has a business in Nathan Road, Kowloon, a daughter at university, and has been paying his taxes.  In all respects, so Mr Allman-Brown suggests, the defendant is a responsible citizen.   

12. This, however, does not mitigate in any way the fact the defendant has flagrantly breached the deportation order and as at 25 March had been convicted on three previous occasions for a breach of that order. Notwithstanding his deportation in January 2004 he chose to again abuse the Hong Kong legal system and re-entered Hong Kong within a period of two months under yet another name. 

13. Whether the name used by the defendant to enter Hong Kong on 25 March 2004 is a real name and whether the birth certificate is a genuine certificate, I do not have to make any finding.  Suffice it to say that contrary to any suggestion that the defendant is a model citizen paying his taxes, he was in Hong Kong illegally, knowing he was in Hong Kong illegally. Knowing that he was in breach of the deportation order he acquired residence status on a falsehood.   

14. Mr Allman-Brown has referred me to an authority regarding sentencing for breach of deportation order.  This is HKSAR v Joned Asri CACC 345 of 2012.  In that case, a total of 10 repeated entries in breach of a deportation order over a period of two years resulted in an overall sentence on appeal reduced from the original 59 months imposed by the District Court judge to 33 months.   

15. I note in that case, however, the defendant was of previous clear record prior to committing the first offence, and the incremental starting points, although adjusted on appeal, were deemed appropriate with a finite level to reflect the degree of overall criminality of the offence such that the first starting point adopted was 27 months reaching or to an increase to starting point of 42 months to cover all 10 charges.

16. I have listened carefully to all that has been advanced in mitigation.  As I say, the defendant showed a flagrant defiance of the law of Hong Kong in 2004 when he re‑entered, having been deported only in January of that year.  The fact that he has been in Hong Kong since then, paying taxes, bringing up a family and running a business does not detract from the degree of criminality.  He has used and abused his falsely acquired status, knowing full well the consequences of entering Hong Kong in breach of a deportation order. 

17. In all the circumstances, I consider an appropriate starting point for the 1st charge to be one of 30 months’ imprisonment.  For the 2nd charge, I consider an appropriate starting point to be 36 months’ imprisonment.  For the 3rd charge, I would have adopted a similar starting point of 36 months.  However, this was an offence committed whilst on bail, and committing an offence whilst on bail is an aggravating feature.  He had only been arrested on 15 January 2014 and went on to commit the fourth offence just over two weeks thereafter in early February.  In all the circumstances, I consider a starting point of 42 months to be appropriate for the 4th charge.

(Discussion re starting points for charges)

18. I will deal with the 2nd charge in a moment.  For each of these charges, the defendant will be allowed the usual one‑third discount to reflect his pleas so that in respect of the 1st charge, the defendant is sentenced to 20 months, the 3rd charge to 24 months, and the 4th charge to 28 months.  

19. The 2nd charge and this is the charge relating to the making of a false declaration to the immigration officer. In the declaration made by the defendant, he told flagrant lies to the immigration officer no doubt to cover up his status as a person in Hong Kong in breach of the deportation order.  Whilst the maximum sentence for this offence under the ordinance is higher than the other offence, the sentences imposed by the courts for this offence of making a false declaration tend to be lower. Furthermore, a distinction is made where the offence incorporates the use of a forged travel document.

20. The prosecution in the present case has not been able to prove the passport used by the defendant to enter Hong Kong in 2004 which was no doubt the reference document in connection with the declaration made in 2006, the subject of the 2nd charge, is a false travel document.  However, this is a serious offence and was part of the progression towards the defendant obtaining a permanent Hong Kong identity card. 

21. In all the circumstances, I shall adopt a starting point of 12 months which I reduce to 8 months to reflect his plea of guilty. 

22. I shall now turn to the question of consecutive/concurrent sentences and the overall totality.  In respect of Charges 1, 3 and 4 - they are the charges relating to the breach of deportation order - I had in mind an overall sentence of 36 months.  This can be arrived at by making 4 months in respect of the 1st charge consecutive to the 4th charge and the remaining 16 months concurrent; in respect of the 3rd charge, 4 months consecutive to the 4th charge with the remaining concurrent; the periods of 4 months in respect of the 1st charge and 2nd charge be consecutive to each other, making an additional 8 months to be added to the 28 months imposed in respect of the 4th charge.  This achieves the overall total of 36 months in respect of Charges 1, 3 and 4.

23. In respect of the 2nd charge, this was a wholly different charge but part and parcel of the defendant’s machinations to remain in Hong Kong in breach of his deportation order.  It was, nevertheless, an attempt to regularise what was an illegal status and again a flagrant breach of the Hong Kong law and Hong Kong immigration system.

24. To reflect the overall totality of the sentence which the defendant should serve in respect of all these four offences, I will order that 3 months of the 8 months imposed to run consecutive to the sentences I have imposed in respect of Charges 1, 3 and 4, and 5 months concurrent which makes a total sentence the defendant has to serve in respect of all four charges of 3 years and 3 months’ imprisonment.

25. I would add in passing sentence that I found it strange, given that a person is required to provide a fingerprint at the time he applies for a Hong Kong identity card, that the defendant’s status as a person in breach of a deportation order was not picked up prior to his arrest in January 2014.  Failure to cross-check the fingerprint has allowed the defendant to remain in Hong Kong for 10 years and indeed to obtain a Hong Kong permanent ID card.  I trust that that Hong Kong permanent ID card has now been revoked...

(Discussion re the Hong Kong ID card)and further that the position of his marriage to the Hong Kong resident is now being looked at, bearing in mind he had no lawful right to remain in Hong Kong at the time he entered into that marriage irrespective of whether the identity under which he entered that marriage was true or otherwise.

(Judge asked to repeat the last sentence)

26. As I said at the earlier hearing, it begs the question as to why the Hong Kong Immigration Department bothers to take the fingerprints of persons applying for an identity card.