HKSAR v. JONED ASRI

CACC 345/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 345 OF 2012

(ON APPEAL FROM DCCC 578/2012)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Cheung CJHC (giving the reasons for judgment of the court):

1.  At the conclusion of the hearing, we gave leave to appeal against sentence, treated the hearing as the hearing of the appeal, quashed some of the sentences given below and substituted them with new sentences, with the result that the total sentence became 33 months. These are our reasons.

The facts

2.  On 14 March 2012, the applicant was intercepted and arrested by the police on the street.  His fingerprints matched those of Tri Wahyu (also known as Wahyu Tri), against whom a deportation order dated 5 May 2010 had been issued and was in force at all material times. Under the deportation order, Tri Wahyu was required to leave Hong Kong and prohibited from being in Hong Kong at any time thereafter.  On 17 May 2010, an immigration officer served on Tri Wahyu a copy of the deportation order and explained its contents to him.  He was deported from Hong Kong to Jakarta, Indonesia on the same day.

3.  Investigations reviewed that Tri Wahyu is also (or is actually) known as Joned Asri. Under the latter name, the applicant entered Hong Kong on 20 June 2010 (Charge 5); 17 July 2010 (Charge 6); 23 September 2010 (Charge 7); 21 October 2010 (Charge 8); 21 November 2010 (Charge 9); 1 March 2011 (Charge 10); 19 November 2011 (Charge 11); 14 December 2011 (Charge 12); 3 February 2012 (Charge 13); and 29 February 2012 (Charge 14).

4.  The applicant was therefore charged with ten charges of “breach of deportation order” (Charges 5 to 14), contrary to section 43(1)(a) of the Immigration Ordinance (Cap 115), in respect of the ten entries he made to Hong Kong described above after the making of the deportation order and his deportation to Indonesia.

5.  The applicant pleaded guilty to the ten charges before Deputy District Judge K H Cheang and was duly convicted of the same on 13 August 2012.  On the following day, the deputy judge, after hearing mitigation, sentenced the applicant to a total of 59 months’ imprisonment.

6.  The deputy judge referred to a number of authorities involving repeat or persistent offenders for breach of deportation order.  He noted that the applicant had no previous similar conviction, and therefore the 5^th to 14^th charges were respectively his first to tenth breaches of deportation order.  In light of the authorities he referred to, the deputy judge adopted the following starting points for the charges:

5^th Charge (first breach): 27 months’ imprisonment

6^th Charge (second breach): 30 months’ imprisonment

7^th Charge (third breach): 30 months’ imprisonment

8^th Charge (fourth breach): 36 months’ imprisonment

9^th Charge (fifth breach): 42 months’ imprisonment

10^th Charge (sixth breach): 42 months’ imprisonment

11^th Charge (seventh breach): 42 months’ imprisonment

12^th Charge (eighth breach): 48 months’ imprisonment

13^th Charge (ninth breach): 48 months’ imprisonment

14^th Charge (tenth breach): 48 months’ imprisonment

7.  The deputy judge then gave the usual one‑third discount to each of the 5^th to 14^th charges for the applicant’s guilty plea, and the individual sentences for the ten charges after the one‑third discount became:

5^th Charge (first breach): 18 months’ imprisonment

6^th Charge (second breach): 20 months’ imprisonment

7^th Charge (third breach): 20 months’ imprisonment

8^th Charge (fourth breach): 24 months’ imprisonment

9^th Charge (fifth breach): 28 months’ imprisonment

10^th Charge (sixth breach): 28 months’ imprisonment

11^th Charge (seventh breach): 28 months’ imprisonment

12^th Charge (eighth breach): 32 months’ imprisonment

13^th Charge (ninth breach): 32 months’ imprisonment

14^th Charge (tenth breach): 32 months’ imprisonment

8.  The deputy judge could see no other valid mitigating features justifying any further reduction in sentence.  He therefore sentenced the applicant to the reduced terms of imprisonment set out in the preceding paragraph.

9.  The deputy judge then observed that the applicant committed the same offence for ten times between 20 June 2010 and 29 February 2012, thus showing his flagrant defiance of the law in Hong Kong.  He considered that a deterrent sentence was required.  Having considered the totality principle, the deputy judge ordered 3 months in each of the 5^th to 13^th charges to run consecutively with the 32 months in the 14^th charge, thus making a total of 59 months’ imprisonment for the ten charges.

The arguments

10.  In this application for leave to appeal against sentence, Mr James Tze, for the applicant, submitted that the deputy judge had wrongly treated the applicant as a repeat offender and therefore applied the authorities he referred to incorrectly.  Counsel pointed out that the applicant was convicted of the ten charges on his own plea at a single occasion.  That means when he committed the 6^th to 14^th charges, he had not been convicted of any charges and at the time when he pleaded guilty to the charges, he had no previous similar record.  Accordingly, counsel submitted that even though the applicant had breached the deportation order for a number of times, he should be treated more leniently than an offender who had previous convictions.  He submitted that an inference could be drawn that without being sentenced for the offence, the applicant might not have appreciated the seriousness of the offence, and this had to be considered in adopting the starting points for the convictions.  Counsel therefore submitted that the deputy judge had wrongly relied on cases involving multiple previous convictions in deciding the starting points for the present case, which involved multiple breaches of which the applicant was convicted for the first time on one single occasion.

11.  Mr Tze further drew the court’s attention to the maximum sentence for the offence under section 43(1)(a), that is, 7 years’ imprisonment.  He submitted that the overall/global starting point for the charges, namely 88.5 months, was disproportionate to the overall criminality.  He therefore submitted that the final sentence on the charges, namely 59 months upon a plea of guilty, was manifestly excessive.

12.  Finally, Mr Tse also submitted that the commission of the charges could be treated as a single series of act and the court should consider a concurrent sentence.  Alternatively, due to the short periods of time between the respective charges, concurrent sentences should be imposed in respect of charges 5 and 6; charges 7, 8 and 9; charges 11 and 12; and charges 13 and 14.

13.  Ms Wong Kam Hing, Deputy Director of Public Prosecutions (Ag), essentially supported the judge’s sentences in her submissions.  She disputed the logic of the applicant in drawing a distinction between breaches and convictions.  She emphasized that the deportation order was served on and explained to the applicant before deportation and it is not open to the applicant now to claim that he was not aware of the seriousness of any breach of such order.  She therefore submitted that the individual sentences for the ten charges could not be faulted.  She further submitted that the maximum sentence of 84 months is provided for a single breach of deportation order, not ten breaches.  The fact that the global sentence for ten breaches exceeded the maximum sentence for a single breach was neither here nor there.  She also argued that on the facts, it was not open to the sentencing court to treat the ten breaches as a single series of act and the court rightly did not do so.  Counsel also stressed that the applicant used an identity different to that in the deportation order to enter Hong Kong in order to avoid detection by the authorities.  He managed to so evade the authorities on ten occasions of entry until he was intercepted in Wanchai.  This “belated” detection was a result of the applicant’s own making, and it was not open to him to complain that had he been intercepted earlier, he would have committed fewer breaches, and therefore he deserved a lighter sentence.  She supported the sentencing judge’s view that the applicant’s ten breaches constituted a flagrant defiance of the law and a deterrent sentence was called for.  The applicant effectively got a 6 months sentence per breach on average, which was a huge discount when compared with a sentence of 18 months for the first breach on a plea of guilty.

Our views

14.  We agree with Ms Wong that in no view of the matter can the applicant be regarded as a first offender (save in relation to the 5^th charge).  He has, on his own plea of guilty, committed ten breaches of the deportation order, the effect of which had been fully explained to him before he was deported from Hong Kong back in 2010.  Yet he returned to Hong Kong just over one month after he was deported (Charge 5) under a different name, with the clear intention to evade detection by the authorities.  He managed to do so repeatedly and he was only caught on the tenth return.  We fully agree with Ms Wong that this “belated” detection was a result of the applicant’s own wrongdoing, and it was not open to him to turn this point around in his favour when it came to sentencing.  We see little difference, on the facts of the present case, between breaches and convictions.  We do not exclude the possibility that on some other facts, such a distinction could make a difference in terms of sentencing, but certainly this is not such a case.

15.  But that still leaves the all‑important question of whether the sentences passed in the present case were manifestly excessive.

16.  The deputy judge correctly took into account the fact that the applicant was a repeat offender.  That was an aggravating factor which justified the court’s enhancing the starting point.  However, one must bear in mind that the maximum sentence for the offence in question is 7 years’ imprisonment.  The ultimate sentence, after enhancement, must be proportionate to the seriousness of the offence, reserving the maximum penalty for worst cases of its kind. 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 worst of its kind, until one reaches the maximum.  This would be wrong in principle because apart from the fact that it is a repeat offence, the nature and criminality of the offence repeated remains the same.  The offence does not become more and more serious, thus attracting a higher and higher penalty, by the mere fact that it is a repeat offence.  An offence does not become worst of its kind just by mere repetition.

17.  In our view, there must reach a point when the fact that one is dealing with a repeat offence should no longer have any additional enhancing effect on the already-enhanced starting point.  The maximum penalty, as mentioned, is reserved to worst cases of its kind.  The enhanced starting point must plateau at some point.

18.  It is not clear from the materials before the court, nor can it be deciphered from the starting points adopted by the deputy judge for the ten convictions, whether he recognised the principles described above.  He adopted 42 months’ imprisonment as a starting point for the 9^th, 10^th and 11^th charges (apparently basing himself on HKSAR v Pham Van Hung, CACC 14/2011, 12 August 2011); and a starting point of 48 months for the 12^th, 13^th and 14^th charges.  It is not clear whether, had there been further breaches and convictions beyond the 14^th charge, the deputy judge would have chosen an even higher starting point than 48 months.

19.  On the facts of the present case, given the nature and seriousness of the offence and the criminality involved, we take the view that the enhanced starting points ought to have flattened out after the fifth breach, that is, at 42 months’ imprisonment, which was the enhanced starting point adopted by this court (differently constituted) in Pham Van Hung in respect of a fifth breach.

20.  We also note that in one of the cases cited to us, that is, HKSAR v Bui Ngoc Thang, DCCC 464/2012, 26 June 2012, Deputy District Judge C P Pang adopted a starting point of 42 months when there had been six previous breaches of deportation order.

21.  To this extent, we consider that the deputy judge below erred.  Given the errors made on the individual sentences, it is inevitable that the overall/global starting point for the ten breaches, namely 88.5 months, was quite disproportionate to the overall criminality.  Likewise, in our view, the final sentence on the charges, that is, 59 months upon a plea of guilty, was manifestly excessive.

22.  In our view, bearing in mind (amongst other things) the intervals between the breaches, the starting points for the 5^th to 14^th charges should be 27, 30, 30, 36, 42, 42, 42, 42, 42 and 42 months respectively.  Giving the applicant the full one‑third discount, the individual sentences for the ten breaches should be 18, 20, 20, 24, 28, 28, 28, 28, 28 and 28 months of imprisonment respectively.

23.   Having borne in mind the totality principle and the various matters urged by counsel, we have concluded that the sentences for the 5^th to 9^th charges should run concurrently (resulting in a total sentence of 28 months); 2 months of the 10^th charge should run consecutively to the total sentence for the 5^th to 9^th charges (resulting in a total sentence of 30 months for the 5^th to 10^th charges); and the sentences for the 11^th to 14^th charges should run concurrently to each other but 3 months of them should run consecutively to the total sentence for the 5^th to 10^th charges. In other words, the total sentence for the ten charges should be 33 months. We have accordingly given leave to appeal, treated the hearing as the hearing of the appeal, quashed the sentences given below and substituted them with new sentences to the extent indicated above.  This has resulted in a reduced total sentence of 33 months.