HKSAR v. KHAN KHANWAZV (also known as AFSAR Sher and SHER Afsar)

DCCC 265/2020

[2020] HKDC 499

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 265 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 15 charges of breach of deportation order, contrary to section 43(1)(a) of the Immigration Ordinance[1].

Admitted Facts

2.  Upon processing the entry dependent visa of the defendant’s son, the application was referred for further investigation. 

3.  Fingerprint check confirmed that the defendant, under the identity of SHER AFSAR with date of birth as 1939 (“ID1”), was subjected to a Deportation Order issued on 16 April 2003 (“the Deportation Order”), which prohibited the defendant from being in Hong Kong for life.  On 22 May 2003, the Deportation Order was served to the defendant with the assistance of an interpreter.  On 21 July 2003, the defendant was deported to Pakistan.

4.  In 2008, the defendant, under the identity of KHAN, KHANWAZ with the date of birth of 3 March 1955 (“ID2”), was granted an entry dependent visa under the sponsorship of his wife. 

5.  The defendant then assumed ID2 in all immigration dealings in Hong Kong.  On 24 March 2015, the defendant obtained right of abode in Hong Kong under ID2.

6.  There were a number of arrival and departure records concerned the defendant in ID2 (Re: Charges 1 – 15):-

i) 2 January 2010;

ii) 25 July 2010;

iii) 6 September 2011;

iv) 29 April 2012;

v) 18 September 2012;

vi) 21 August 2013;

vii) 17 May 2014;

viii) 21 December 2014;

ix) 15 March 2015;

x) 13 May 2015;

xi) 7 November 2015;

xii) 31 January 2016;

xiii) 23 February 2016;

xiv) 27 March 2016; and

xv) 28 July 2016.

Previous Criminal Convictions

7.  The defendant has 1 criminal record on 20 November 2002 with 2 criminal convictions, namely:-

i) Breach of Condition of Stay (1 month’s imprisonment); and

ii) Using an Identity Card relation to another person (12 months’ imprisonment to run concurrently to the offence of Breach of Condition of Stay).

Mitigation

8.  The defendant is aged 65 years old.  He is originally from Pakistan.  He has good health.  He received primary school education in Pakistan.  He previously worked as a part-time driver in Pakistan, earning the equivalent of around HK$1,500.00 per month. 

9.  The defendant and his first wife had 6 children, together 5 sons and 1 daughter.  His first wife passed away in 2006 in Pakistan.  His children are all in Pakistan and are now aged between 16 and 37 years old. 

10.  The defendant got married to his current wife in Pakistan after the death of his first wife.  His current wife is aged 50.  They have no children together. 

11.  The defendant’s current wife is a Hong Kong Permanent Resident.  After they married in Pakistan, she was in a position to sponsor him as a dependent to come to live in Hong Kong together with her, but given that he was subject to the Deportation Order and did not want to disclose his past as he believed he would be able to obtain the visa to come to Hong Kong, he identified himself as Khan, Khanwaz.

12.  With regards to the 15 charges, the defendant states that he had gone on a number of occasions to Pakistan by himself, to visit family, to Mainland China, for meals with friends and to Saudi Arabia, to go to pilgrimage together with his wife.  He committed the offence out of love and care for his wife, who is a heart patient.  He wanted to take care of her. 

13.  The defence submitted an apology letter by the defendant and a letter from the Chief Patron Mr. Khan Jahan Zeeb of the Hong Kong Youth Betterment Association.  I have read and considered both before sentencing.

Sentence

14.  There are a total of 15 charges of breach of deportation order.

15.  In determining the appropriate starting point for sentence, I have considered HKSAR v Joned Asri[2], HKSAR v Mohammad Qamaaluddin Ahmed and Others[3], HKSAR v Ta Dinh Son[4] and HKSAR Pulido Rannie Laig[5]. 

16.  In HKSAR v Joned Asri, the defendant pleaded guilty to 10 charges of breach of deportation order and the sentencing judge sentenced him to a total of 59 months’ imprisonment.  The Hon CJHC giving the judgment of the Court held that:

“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 …… The enhanced starting point must plateau at some time.

…… the enhanced starting points ought to have flattened out after the fifth breach, that is, 42 months’ imprisonment ……

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

Given 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.

…...Having borne in mind the totality principle and the various matters urged by counsel…… the total sentence for the ten charges should be 33 months.”

17.  In HKSAR v Mohammad Qamaaluddin, the defendant pleaded guilty to a total of 18 counts of “breach of deportation order”. He was sentenced to 24 months for each count, to run concurrently in all 18 charges.  However, I noted that Mohammad Qamaaluddin was decided before Joned Asri. 

18.  In HKSAR v Pulido Rannie Laig, the defendant pleaded guilty to a total of 15 counts of “breach of deportation order”.  The defendant received a 28 months’ sentence for each count, and the sentences were to be served wholly concurrently.  The court adopted a global approach to simplify the sentencing process. 

19.  In the present case, the defendant has breached the deportation order 15 times.  Repeat offending is a signification aggravating feature justifying enhancement of the starting point of 27 months’ imprisonment.

20.  In HKSAR v Joned Asri the Court of Appeal held that 27 months, 30 months, 36 months and 42 months were appropriate for the first to fifth breaches, and the enhanced starting points were flattened out after the fifth breach. 

21.  In the present case, I adopt the following starting points and give a one-third discount of sentence for the guilty pleas he entered.

Charges	Starting Point	Sentence after 1/3 discount
1st Charge	27 months	18 months
2nd Charge	30 months	20 months
3rd Charge	33 months	22 months
4th Charge	36 months	24 months
5th Charge	42 months	28 months
6th Charge	42 months	28 months
7th Charge	42 months	28 months
8th Charge	42 months	28 months
9th Charge	42 months	28 months
10th Charge	42 months	28 months
11th Charge	42 months	28 months
12th Charge	42 months	28 months
13th Charge	42 months	28 months
14th Charge	42 months	28 months
15th Charge	42 months	28 months

22.  The mitigation advanced related mainly to his personal background.  I see no valid mitigating factor that justifies any further reduction in sentence.  I therefore sentenced the defendant to the reduced terms of imprisonment as set out in the paragraph above.  

Totality

23.  All the offences are separate and distinct.  Defence urged the court to adopt the approach of Mohammad Qamaaluddin and Pulido Rannie Laig, to order all sentences be run concurrently.  However, the offences in those cases were committed within a period of 2 years.  In the present case, the offences spread out over 6 years. I also bear in mind the totality principle, I make the following orders:-

i) 1^st to 8^th charges should run concurrently, making a total of 28 months;

ii) 9^th to 15^th charges should run concurrently (a total of 28 months) but 3 months should run consecutively to the total sentence for 1^st to 8^th charges, making a total of 31 months for all the charges.

iii) I consider the ultimate sentence of 31 months’, or 2 years 7 months’ imprisonment to be sufficiently reflect the defendant’s overall criminality and culpability in these 15 charges.