HKSAR v. IPAN, ALSO KNOWN AS IVAN SULAIMAN

DCCC167/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 167 OF 2012

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Reasons for Sentence

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1.  The defendant has pleaded guilty to six charges, namely:

(1) Making a false representation to an Immigration assistant (Charge 1), contrary to section 42(1)(a) of the Immigration Ordinance (the Ordinance).

(2) Using a false travel document (Charge 2), contrary to section 42(2)(b) of the Ordinance.

(3) Breach of deportation order (Charge 3), contrary to section 43(1)(a) of the Ordinance.

(4) Making a false representation to an Immigration assistant (Charge 4), contrary to section 42(1(a) of the Ordinance.

(5) Using a false travel document (Charge 5), contrary to section 42(2)(b) of the Ordinance.

(6) Breach of deportation order (Charge 6), contrary to section 43(1)(a) of the Ordinance.

THE FACTS

2.  The defendant came to Hong Kong on 18^th November 2011 by using Exhibit E1, an Indonesian passport numbered U915029, in the name of Ivan Sulaiman with the date of birth on 9^th September 1969.

3.  Investigation revealed that the defendant’s real date of birth is 29^th August 1967.  At all material time he was subject to a deportation order (IMMCR502/91), and he had been prohibited from entering Hong Kong since 12^th November 1991.

4.  On 20^th November 2011, the defendant was stopped by a patrolling police constable, PC33818, at Yau Ma Tei and was later brought back to his guesthouse inside which he presented E1 to PC33818.  Upon checking, the defendant was found to be permitted to stay until 19^th November 2011 and thus arrested and cautioned.

5.  During a further cautioned interview the defendant admitted, inter alia, the followings:

(1) he applied for E1 using the name of Ivan Sulaiman and a false date of birth (9 September 1969);

(2) he used E1 because his identity was subject to a deportation order;

(3) the deportation order was issued against him back in 1991; and

(4) he came to Hong Kong on the present occasion for garment business purpose.

6.  A travel index check revealed that the defendant also used E1 to come to Hong Kong on 22^nd June 2010.

SENTENCING GUIDELINES AND PRINCIPLES

Charges 1, 2, 4 and 5

7.  In HKSAR v Yim Lee Kuen, unreported judgment, HCMA1187/2002, Deputy High Court Judge McMahon as he then was, having reviewed a number of relevant authorities, summarised that offenders prosecuted pursuant to section 42(2) of the Immigration Ordinance would be liable to a penalty of 15 to 18 months’ imprisonment after plea. 

8.  Later, in HKSAR v Pahila [2007] 1 HKLRD 410, McMahon J commented that a starting point of 12 months’ imprisonment taken was overly lenient in relation to a charge of making a false representation to an Immigration officer contrary to section 42(1)(a) of the Immigration Ordinance.  He also referred to his earlier judgment of Yim Lee Kuen, supra, and pointed out that:

“There was little logic in distinguishing levels of sentence for offences of using a false passport to enter Hong Kong contrary to section 42(2) of the Immigration Ordinance, and of making a false statement to an Immigration officer by way of producing a false passport contrary to section 42(1) of the Immigration Ordinance.”

It was made clear that sentences after plea of up to 18 months’ imprisonment are justified in respect of both sorts of offences.

9.  I note that the maximum sentence for section 42 offences under the ordinance is 14 years.

Charges 3 and 6

10.  In HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762, also a judgment by Deputy Judge McMahon (as he then was), the offence of breach of deportation order was considered more serious than unlawfully remaining in Hong Kong (which attracts a 15 months’ imprisonment after plea) and it was noted that the maximum sentences for these offences are 7 years’ imprisonment and 3 years’ imprisonment respectively.  McMahon J remarked that:

“That is sensible when it is remembered that the breach of a deportation order requires a deliberate circumvention of an order directed at the offender personally.”

11.  He found that a sentence of 18 months’ imprisonment after plea cannot be criticised for a breach of deportation order offence.

12.  In a recent judgment of the Court of Appeal, in HKSAR v Tran Viet Thanh [2012] 1 HKLRD 903, dealing also with the sentence imposed on a breach of deportation order offence, a sentence after plea of 20 months’ imprisonment in respect of an offender in CACC54/2011, who had two previous similar convictions, was affirmed, whilst a sentence after plea of 18 months’ imprisonment in respect of an offender in CACC221/2011, who had one previous similar conviction, was increased to 20 months’ imprisonment.  These sentences were ordered to be served partly consecutive to the other immigration offences that the individual appellants were charged.

THE DEFENDANT’S BACKGROUND AND MITIGATION

13.  The defendant is 44 years of age.  He is a married man and a father of four children aging from 2 to 14.  He is rooted in Indonesia, although before he came to Hong Kong on this occasion he became unemployed for a period of time.  I was told that the defendant has an outstanding debt of HK$100,000. 

14.  In mitigation, the defendant pledges not to come to Hong Kong again and he came to Hong Kong this time merely to accompany his friends although he would engage himself in the sort of garment business dealing in Hong Kong in the past from which he could earn a moderate reward as compared to his debt. 

15.  He asked for leniency.

16.  His guilty plea and that he has no previous similar conviction would be reflected in the sentence. 

17.  I am asked to consider the totality principle and to impose a concurrent sentence, albeit that the defence lawyer confirmed that a partial consecutive sentence in respect of Charges 3 and 6 to each other and to the rest of the other charges is appropriate.

18.  The defence noted and confirmed that Charges 1 to 3 are distinct charges to Charges 4 to 6 because they were based on similar facts taking place on different occasions.

THE SENTENCE

19.  Having fully considered the background of this case and of the defendant, mitigation put forward by defence lawyer, all the relevant sentencing guidelines and principles, I sentence the defendant in this case as follows:

Charge 1 - 15 months.

Charge 2 - 15 months, to be served concurrently to Charge 1.

Charge 3 - 18 months, 5 months to be served consecutively to Charges 1 and 2, making it a total of 20 months’ imprisonment for Charges 1 to 3.

Charge 4 - 15 months.

Charge 5 - 15 months, to be served concurrently to Charge 4.

Charge 6 - 18 months, 5 months to be served consecutively to Charges 4 and 5, making it a total of another 20 months’ imprisonment for Charges 4 to 6.

2 months out of the 20 months’ imprisonment on Charges 4 to 6 is to be served consecutively to the sentence on Charges 1 to 3.

20.  Therefore the total sentence on the defendant is 22 months’ imprisonment.

21.  There is no basis to suspend any of these sentences.