HKSAR v. NAIDA BADUGE NISHANTHA PRADEEP DE SILVA ALSO KNOWN AS BOVI THANTRIGE LASANTHA AND BOVI THANTRIGE LASANTHA

DCCC 960/2020

[2021] HKDC 880

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 960 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant is facing 12 charges of Breach of Deportation Order contrary to section 43(1)(a)  of the Immigration Ordinance, Cap 115. These charges are identical but took place on different dates, viz., 19 March 2011, 16 November 2013, 2 May 2016, 27 August 2016, 14 February 2018, 18 February 2018, 1 September 2018, 30 June 2019, 31 August 2019, 6 October 2019, and 27 December 2019.

2.  The defendant pleaded guilty to all charges.

3.  The Summary of Facts read and admitted by the defendant is as follows:-

(a)  On 27 April 2020, the defendant surrendered to the police station for an unrelated immigration offence. Upon fingerprint checking, his status as a deportee was revealed.

(b)  On 29 August 2002, a deportation order was made against him under the name of Lasantha Bovi Thantrige alias Thantrige Lasantha Bovi requiring him to leave Hong Kong and prohibiting him from being in Hong Kong at any time thereafter. The defendant received a copy of the said deportation order on 5 September 2002 and was deported to Colombo on the same day.

(c)  Thereafter the defendant being a person subject to the deportation order and in contravention thereof, entered Hong Kong on 12 occasions. His movement records showed he had entered Hong Kong using his HKID card or passport, both in the name of NAIDA BADUGE NISHANTHA PRADEEP DE SILVA on those as specified under Charges 1 to 12.

(d)  In a video-recorded interview conducted on 9 June 2020, the defendant admitted the following under caution:-

(i)  His real name is Naida Baduge Nishantha Pradeep De Silva. When he first came to Hong Kong in around 2000, an agent gave him a passport under the name of Lasantha Bovi Thantrige and told him to use that name for work. He later presented that passport to the law enforcement officers who arrested him;

(ii)  He had been deported and the deportation order was signed by him; and

(iii)  He had been in Hong Kong for over 16 years. He had entered Hong Kong on a work visa in around September 2003 and had been working as a domestic helper in Hong Kong since then.

4.  The antecedent statement is confirmed to be true and correct in that:-

(a)  the defendant was born in Sri Lanka on 8 April 1971. He is now 50 years old;

(b)  he had completed General Certificate of Secondary Education Ordinary Level in Sri Lanka;

(c)  he has one previous record and that is Unlawful Possession of Dutiable Goods. He was discharged from prison and subsequently deported to Colombo on 5 September 2002;

(d)  he is married and has two daughters aged 9 and 3 in Hong Kong. He was working as a domestic helper;

(e)  he was arrested on 27 April 2020 and was charged with breach of deportation order on 19 June 2020;

(f)  he is in general good health without any illness.

MITIGATION

5.  After completing his GCE advance level (different from the antecedent statement), the defendant attended a 2-year course in a technical college in Sri Lanka then started working at a tea factory as machine operator for 4 years.  He decided to come to Hong Kong after he heard he could get a better job there with better income.

6.  He came to Hong Kong with a passport which bore his true name.  The passage was arranged by an agent.  After he arrived in Hong Kong, the agent introduced him to another agent to arrange for his stay and to find him a job before taking his money and disappeared.  The new agent took over his passport, got him a job in an “oil factory” and kept his passport.  Unbeknown to him, it turned out to be an illegal “oil factory” and when the Customs and Excise Department raided the “oil factory”, he was arrested, charged and convicted for the offence of possession of dutiable commodities.  At the time of the raid, his new agent appeared and handed him a passport which bore the name of another person called BOVI THANTRIGE LASANTHA.  Due to ignorance and being a stranger in town, the defendant did not reveal the truth to the authorities at the time and that is how the deportation order was in the name of LASANTHA BOVI THANTRIGE alias THANTRIGE LASANTHA BOVI.  On 5 September, he received notification that there was a deportation order against him and he was duly deported.

7.  In 2003 the defendant returned to Hong Kong with his genuine passport.  The passage was arranged by an agent and got him a job to work as a domestic helper.  He remained so occupied from 2003 to 2020 during which he was able to earn $6,000 per month.

8.  Of all 12 occasions he used his genuine passport to re-enter Hong Kong which formed the basis of Charges 1-12, the purpose was either to renew his wife’s visa as she was working also as a domestic helper in Hong Kong, or to renew his own working visa or to take his daughters to China.

9.  The defendant is a good and supportive husband and father.  He has always contributed his salaries to support his family.  He was always there when needed by his wife and his daughters.  He and his daughters have been very close with each other.  His current remand in custody has caused considerable distress to his wife and daughters.  When his family visited him in prison, he had to tell his youngest daughter that he cannot go home with them because he was there.  He is especially proud of his elder daughter who is bright and is an excellent student.  She has won many awards in school.  It is his wish that he could provide the best education for his children.  He has also served in his community and the temple dutifully.

10.  Ms Nisha Mohamed, counsel for the defendant, refers to HKSAR v Joned Asru also known as Tri Wahyu, CACC345/2012 which is a case that involved multiple offences of breach of deportation order.  The Court of Appeal in granting leave to appeal against sentence and substituting the totality of sentences from 59 months’ imprisonment to 33 months’ imprisonment stated the following: “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 worse 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.  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 the worst cases of its kind.  The enhanced starting point must plateau at some point.

11.  Defence counsel also refers to HKSAR v Gutierrez Margarita Sadiosa (also known as Sadiosa Margarita R), DCCC 324/2020 which is a case where the defendant had 13 charges of breach of deportation order in addition to 7 other charges and highlighted what the court said as follows “…….. 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”.  The court, after considering the defendant’s plea of guilty and the starting point of Joned Asri, and sentenced the defendant to 28 months for the offences of breach of deportation order.

12.  Defence counsel urges this court to adopt a similar approach as the court did in the above case for the defendant in the present case was also a domestic helper, and part of his re-entering Hong Kong was for the purpose of renewing his working visa, and not a fresh decision or under different circumstances of trying to seek employment.  She also urges upon this court to adopt a concurrent sentencing approach when considering totality.

Reasons for Sentence

13.  The maximum sentence for the offence of breach of deportation order on conviction upon indictment is 7 years’ imprisonment.

14.  There are no sentencing guidelines for this offence.  In HKSAR v Ta Dinh Son [2014] HKCA 17 or CACC 384/2013, the Court of Appeal reviewed various cases and observed that generally, for a first conviction, the starting point after trial is one of 27 months’ imprisonment.

15.  The defendant in the present case has one conviction record and that is the offence he committed in 2002 for unlawful possession of dutiable goods.  This is his first conviction for breach of deportation order.  I have considered all that was said in mitigation by defence counsel and the letters for mitigation of the defendant himself, his wife, his elder daughter, the Embassy of the Democratic Socialist Republic of Sri Lanka and Sri Lankan Buddhist Cultural Centre – Hong Kong.

16.  The normal starting points for sentence in respect of multiple commission of this kind of offence can be found in the case of Joned Asri, which was referred to by counsel for the defendant.  The court of Appeal analysed the increase in starting point for sentence where there are multiple offences and said that the enhanced starting point ought to flatten out after the fifth breach, the court of Appeal also held that the ultimate sentence after enhancement must be proportionate to the seriousness of the offence, reserving the maximum penalty for the worse cases of its kind.  It was said that what is not permissible, 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.

17.  The situation of the defendant in the present case is similar to Sadiosa’s case also referred to by counsel for the defendant.  Prosecution confirmed the defendant was indeed working as a foreign domestic helper in Hong Kong at the time of his arrest in the present case.  It is a known fact that a foreign domestic helper may have to leave Hong Kong periodically to continue his or her employment. I adopt what the court said in Sadiosa’s case that it’s not a fresh decision or under different circumstances that he re-entered Hong Kong on each occasion.

18.  The defendant’s strongest mitigating factor is his plea of guilty at the earliest opportunity.  Stress and hardship brought onto himself and to his family resulted from his commission of the offence or offences normally would not be taken as mitigating factor.  However, in this case, for humanitarian reason, the well-being of the family may deserve a more lenient sentence to be imposed on the defendant.  As I understood from the facts and mitigation, after being deported, the defendant returned to Hong Kong in 2003, he started a family by getting married sometime after and two children were born out of his wedlock.  His elder daughter is 12 years old and his younger daughter is 3 years old, both were born in Hong Kong.  His wife is working in Hong Kong legally.  According to the awards presented to his elder daughter Naida, she attended local schools in Hong Kong and has a Chinese name although both parents are non-Chinese.  She is apparently a smart child with a great deal of talent proved by the awards she achieved.  She is now a Form 1 student studying at St. Paul’s Secondary School, a prestigious school in Hong Kong.  According to the first term academic report, she came 1^st out of 35 students in the class.  I can foresee she will have a bright future if she can maintain her good performance.  Unfortunately, the intactness of her family is unlikely to continue as long as the deportation order against the defendant remains effective.  The family has to deal with the dilemma sooner or later, that the prospect and well-being of the children will one way or another be affected.

Sentence

19.  The defendant on his plea of guilty is convicted of 12 charges.  I adopt the normal starting point of 27 months’ imprisonment on Charge 1, for his timely plea of guilty, after full one-third discount, the sentence is reduced to 18 months.  For Charge 2, I adopt 30 months’ imprisonment as starting point and is reduced to 20 months after one-third discount.  For Charge 3, I adopt 33 months as starting and is reduced to 22 months after one-third discount.  For charge 4, I adopt 36 months’ imprisonment as starting point and is reduced to 24 months after one-third discount.  For Charges 5 to Charge 12, I adopt 39 months’ imprisonment as starting point and reduced to 26 months after one-third discount.  I take into account of the totality principle and the humanitarian reason as stated in the preceding paragraph into consideration, I order all the sentences to be served concurrently.  The defendant is sentenced to 26 months’ imprisonment.