HKSAR v. GUTIERREZ MARGARITA SADIOSA

DCCC 324/2020

[2020] HKDC 795

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 324 OF 2020

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Reasons for Sentence

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1.  The defendant has pleaded guilty to 13 charges of a breach of a deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap 115. These charges, 1 to 13, are identical save for the fact they took place on different dates. They took place on 2 February 2010, 7 April 2010, 28 October 2010, 2 January 2012, 10 April 2013, 1 May 2015, 27 December 2015, 24 September 2016, 12 February 2017, 9 July 2017, 6 December 2017, 10 August 2019, and 19 November 2019 respectively.

2.  The defendant also pleaded guilty to five charges of making a false representation to an Immigration Officer lawfully acting under or in the execution of Part III of the Immigration Ordinance, contrary to section 42(1)(a) of that ordinance.  These charges, 14 to 18, are identical save for the fact they took place on different dates.  They took place on or about 27 January 2011, 29 January 2013, 26 September 2016, 1 April 2017 and 17 December 2018 respectively.  She made a representation to an Immigration Officer which she knew to be false; namely she had not changed her name before and had not previously been deported from Hong Kong. 

3.  Lastly, the defendant pleaded guilty to two charges of making a false representation for the purpose of obtaining an entry permit, contrary to section 42(1)(c) of the Immigration Ordinance.  These two charges, 19 and 20, are identical save for the fact they took place on different dates.  They took place on 16 February 2015 and 25 August 2019 respectively.  She made a representation to an Immigration Officer which she knew to be false for the purposes of obtaining an entry permit, a foreign domestic helper visa and in the reference of her employer.  She falsely declared that she had not changed her name before and had not been previously deported from Hong Kong. 

Facts of This Case

4.  When the defendant applied for a new smart Hong Kong identity card replacement in December 2019, her application was assessed. During the assessment, it was suspected the defendant was the subject of a deportation order for life issued on 24 January 1996, hereinafter referred to as “the order”.  In August 1995, she had been sentenced to 12 months’ imprisonment for two charges of theft and 2 months’ imprisonment for a breach of her condition of stay.  It was after this that she would have been made the subject of a deportation order for life. 

5.  On 16 December 2019, the defendant was arrested by an Immigration Officer.  Her fingerprints were taken and they were later found to match that of the subject of the order.  Under caution, she admitted that her name used to be Sadiosa Margarita R, the subject of the order, but after she married, her name became Margarita Sadiosa Gutierrez. 

6.  The defendant married for the second time on 8 September 1997.  She admitted to the Immigration Department under caution in an interview that she then applied for a new passport through an employment agency in the Philippines under her married name.  She then used her new passport in her married name to apply for a foreign domestic helper job in Hong Kong.  She herself was surprised when it was approved in 2004. 

7.  She told the Immigration Officers that she later, after arriving in Hong Kong, used her married name to renew her foreign domestic helper contracts and apply for visa extensions.  She was shown documents that related to Charges 14 to 20.  Those were representations she made to an Immigration Officer and she confirmed she had used her married name in all of those documents and representations. 

8.  She told the Immigration Officer that she made those false representations in those applications so that she could remain in Hong Kong as a foreign domestic helper in order to support her children financially at home in the Philippines. 

9.  The reason there are so many charges relating to a breach of a deportation order was because during the course of her employment, she had to enter and depart Hong Kong within certain timeframes according to the terms of her contract and did so on many times.  She committed these offences even though she was aware she was the subject of the order issued to her in 1996 and was aware that she could not return to Hong Kong ever in her lifetime. 

Mitigation

10.  Mr Davies has said all he can say on behalf of the defendant.  She is now 55 years old, has three children and six grandchildren.  She married her second husband after she was deported from Hong Kong in 1996. 

11.  She took his married name and applied for a new passport in that name.  Her first husband was a womanizer and abuser who left her to bring up those three children on her own.  She was successful in applying for work in Hong Kong and came in 2010 using her married name.  Before her arrest, she worked for three different families over the course of nine years. Her husband also works in Hong Kong as a foreign domestic helper which was one of the reasons for her coming here despite that order.  She wanted to earn to support her children and grandchildren as well as be with her husband. 

12.  Mr Davies has said all he can say on behalf of the defendant.  Her best mitigation is her plea at the earliest opportunity. He does stress that although there are many charges, they are all part and parcel of the same crime, so to speak.  She went in and out of Hong Kong because she had to as part of her contract here, and she made false representations to Immigration Officers about various matters in order to keep up the pretence and to keep her employment. 

13.  She has not breached her order to come to Hong Kong to commit offences as is often seen in other similar cases.  I accept her intentions were not criminal in nature in that she did not come here to commit further crimes.  She waited 14 years from the date of her deportation before coming to Hong Kong again. 

14.  She is now genuinely remorseful and will never return to Hong Kong again.  Her husband continues to be employed in Hong Kong and must stay in Hong Kong to support the family on his own now.  I have read all the letters in mitigation and considered their contents.

Reasons for Sentence

15.  The maximum sentence for the offence of breach of deportation order on conviction upon indictment is that of 7 years’ imprisonment.  Although there are no sentencing guidelines, the Court of Appeal in the case of HKSAR v Ta Dinh Son [2014] HKCA l7 or CACC 348/2013 reviewed various cases and observed that generally, for a first conviction, the starting point after trial is one of 27 months’ imprisonment. 

16.  I have also been referred to and considered HKSAR v Joned Asri, CACC 345/2012.  As far as the principles of sentencing are concerned, the normal starting points for sentence in respect of multiple commission of this offence can be found in this case.  In that case, the court analysed the increase in starting point for sentences where there are multiple offences and says that the enhanced starting point ought to flatten out after the fifth breach or the fifth offence at a starting point of 42 months’ imprisonment, which would lead to a sentence after deduction for a plea of guilty of 28 months’ imprisonment. 

17.  The Court of Appeal in that case held that the ultimate sentence after enhancement must be proportionate to the seriousness of the offence, reserving the maximum penalty for the worst cases of its kind.  It was said that what is not permissible, in the case of a repeat or even persistent offender, is to keep enhancing the starting point for each repeat offence, which is not the worst of its kind, until one reaches the maximum. The enhanced starting point must plateau at some time. 

18.  Furthermore, in the case of Joned Asri, some of those offences or sentences were ordered to run consecutively, which means that a defendant committing multiple offences over a period of time, such as the defendant in this case, could expect an end sentence of up to 33 months’ imprisonment.  However, I do distinguish the facts here from other similar cases where there are multiple repeat offences because as a foreign domestic helper, the defendant would have had to leave Hong Kong periodically.  It was not a fresh decision or under different circumstances that she re-entered Hong Kong on each occasion.  It was to continue in employment. 

19.  Adopting the starting points from the case of Joned Asri and applying the discount of one-third which would be appropriate for her early plea, the sentences for Charges 1 to 13 will be as follows: for the 1st charge, 18 months’ imprisonment; for the 2nd charge, 20 months’ imprisonment; for the 3rd charge, 20 months’ imprisonment; for the 4th charge, 24 months’ imprisonment; and for the 5th to the 13th charge, 28 months’ imprisonment. 

20.  As far as Charges 14 to 20 are concerned, they are different, very different charges but they all perpetuated her employment and breach of deportation order.  They were representations the defendant had to make to either renew her contract or obtain an entry permit as a foreign domestic helper.  I take a starting point of 24 months for each of those seven charges and apply a discount of one-third.  Therefore, the sentences for Charges 14 to 20 will be 16 months’ imprisonment. 

21.  I have taken into account the totality principle as well as the facts of this case, why she was in Hong Kong and why the defendant repeated the offences.  I will order all the sentences to be served concurrently. 

22.  Therefore, the defendant is sentenced to a total term of imprisonment of 28 months’ imprisonment.