HKSAR v. SK ARIF also known as SHAKEEL HASSAN MOHAMMAD HASSAN MOHAMMAD SHAKEEL AND ANOTHER

DCCC 536/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 536 OF 2016

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Reasons for Sentence

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1.  The defendant has pleaded guilty to 17 charges of breach of a deportation order.

2.  Those 17 breaches occurred between 29 September 2013 and 3 November 2015.  The defendant surrendered to the Immigration Department with his Indian passport for overstaying in Hong Kong on 19 November 2015.  He last entered Hong Kong on 3 November and was allowed to stay until 17 November as a visitor.  He then proceeded to lodge a torture claim, seeking asylum.

3.  It was discovered that he was subject to a deportation order dated 4 October 2012 under a different name.

4.  On 18 October 2012 he was served that deportation order.  Its contents were explained to him, and he signed it.  He was deported on the same day.

5.  He then used a different name and travel document to enter Hong Kong 17 times, starting from less than a year after he was deported.

6.  Under caution, the defendant said the passport he held now was genuine, bearing his real name.  He admitted he entered Hong Kong in breach of that deportation order, but could not recall how many times.

7.  In mitigation I have heard the defendant is 32 years old and an Indian national.  He is single and lives with his parents and siblings in India.  At home he is a salesman, working with his father in a small trading business.

8.  He is not a man with a clear record in Hong Kong.  He has four previous convictions spanning between 2009 to 2012.  They include theft, possession of dangerous drugs and trafficking in dangerous drugs.

9.  Where this charge is concerned, the starting point for a first time offender is normally 27 months, but a repeat offender, or one who commits many breaches of the same deportation order, will receive a higher sentence.

10.  I have taken into account HKSAR v Pham Van Tuan [2011] HKCU 325 as well as HKSAR v Ta Dinh Son CACC 348/2013.  In that authority, the Court of Appeal held a 4-year starting point would be appropriate where there is an aggravating factor of repeated breaches of a deportation order.  I have also taken into account the authority of HKSAR v Joned Asri CACC 345/2012.  In that authority, the defendant breached a deportation order 10 times.  The Court of Appeal said a total sentence of 33 months was appropriate.  I have taken into account how the Court of Appeal came to that ultimate sentence.

11.  I have also taken into account mitigation I have heard.  I have taken into account that a number of breaches were committed over a period of over two years, and lastly, I have taken into account the totality principle.

12.  Defendant, please stand up.  I find the following starting points appropriate.  For Charges 1, 2, 3 and 4, a starting point of 27 months; for Charges 5, 6 and 7, a starting point of 30 months; for Charges 8, 9, 10 and 11, a starting point of 36 months; for Charges 12, 13 and 14, a starting point of 42 months; for Charges 15, 16 and 17, a starting point of 48 months.

13.  You have pleaded guilty, and you are entitled to a discount of one-third.

14.  After that discount is applied, you are sentenced as follows:  for Charges 1, 2, 3 and 4, 18 months’ imprisonment; for Charges 5, 6 and 7, 20 months’ imprisonment; for Charges 8, 9, 10 and 11, 24 months’ imprisonment; for Charges 12, 13 and 14, 28 months’ imprisonment; for Charges 15, 16 and 17, 32 months’ imprisonment.

15.  I order 1 month of Charge 1 to be served consecutively to Charge 15.  I order 1 month of Charge 5 to be served consecutively to Charge 15.  I order 1 month of Charge 8 to be served consecutively to Charge 15.  Lastly, I order 1 month of Charge 12 to be served consecutively to Charge 15; the balance to be concurrent.

16.  Therefore, there is a total sentence for 17 charges of 36 months’ imprisonment.