HKSAR v. UDDIN MD MOHI

CACC 434/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 434 OF 2014

(ON APPEAL FROM DCCC 613 OF 2014)

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REASONS FOR JUDGMENT

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Introduction

1.  On 25 November 2014 the applicant appeared before Deputy District Judge Mitchell (“the judge”) on a charge sheet containing four charges.  The first, third and fourth charges were offences of breach of a deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap 115.  The second charge was the offence of making or causing to be made 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 the Immigration Ordinance, Cap 115.

2.  The applicant pleaded guilty to all the offences and on 8 December 2014 he was sentenced by the judge to a total of 3 years and 3 months’ imprisonment.  

3.  The applicant now applies for leave to appeal against his sentences.  At the hearing of his application I refused him leave and said I would give my reasons for doing so at a later date.  These are my reasons.

The background to the offence

4.  On 15 January 2014 a joint Police, Labour and Immigration Department operation took place in the Yau Mai Tei District.  In the course of this operation an officer from the Labour Department posed as a customer and entered a shop at 322-326A Nathan Road.  The officer from the Labour Department purchased an item from a person inside the shop and this person was later arrested and convicted for illegally working in Hong Kong.  In the course of all of this happening the applicant arrived at the scene and produced a Hong Kong Permanent Identity Card.  He claimed to be the proprietor of the shop.  He was also arrested. 

5.  A record check of the applicant revealed that he had been arrested by the police under a different identity on 15 November 1996.  At that time he was prosecuted for using a false travel document and sentenced to imprisonment for a period of 6 months.  On 2 June 1997 a deportation order was issued which prohibited him from being in Hong Kong for the rest of his life.  This deportation order was served on him on 10 June 1997 and he was deported on the same day. 

6.  In March 2000 the applicant was arrested by the police under another, different identity.  In June 2000 the applicant was sentenced to 5 months’ imprisonment for breach of his deportation order and in August 2000 he was again deported.  

7.  In May 2001 the applicant was arrested by the police under another, different identity.  He was prosecuted for breach of his deportation order and on this occasion sentenced to 9 months’ imprisonment.  He was deported for the third time in November 2001.

8.  In March 2003 the applicant was arrested again by the police under yet another, different identity.  He was prosecuted for breach of his deportation order and this time sentenced to 15 months’ imprisonment. After serving this sentence he was deported for the fourth time in January 2004.

9.  Since 25 March 2004 the applicant came to and remained in Hong Kong under his current identity and has been permitted to remain in Hong Kong as a visitor on numerous occasions.  His presence in Hong Kong on 25 March 2004 is the basis of the first charge. 

10.  In 2006 the applicant registered a marriage with a Hong Kong resident female using his current identity. 

11.  On 13 February 2006 the applicant applied to the Immigration Department for a change of residence status from visitor to dependant using his current identity.  His application was approved in June 2006.  In this application the applicant declared to the Immigration Department that he had not changed his name before and had not been deported from Hong Kong.  The making by the applicant of these false representations is the basis of the second charge. 

12.  Thereafter, the applicant made applications to the Immigration Department for an extension of stay as a dependant of his wife.  These applications were made in 2007, 2010 and 2013 using his current identity and all the applications were approved. 

13.  In June 2013 the applicant submitted an application for Verification of Eligibility for Permanent Identity Card to the Immigration Department.  On 20 August 2013 the applicant was issued a Hong Kong Permanent Identity Card. 

14.  On 12 January 2014 the applicant entered Hong Kong under his current identity and his presence in Hong Kong on this day is the basis of the third charge.

15.  The applicant last entered Hong Kong under his current identity on 2 February 2014 and his presence in Hong Kong on this day is the basis of the fourth charge.

The Reasons for Sentence

16.  After setting out the facts of the case the judge referred to the mitigation that had been advanced on behalf of the applicant by his counsel, Mr Allman-Brown.  Mr Allman-Brown emphasized the applicant’s work and family background whilst he had been in Hong Kong. The applicant had operated a business in Nathan Road, Kowloon and had a step-daughter at university.  Much was also made of the fact that the applicant had been paying his taxes and, it was said, had been a responsible citizen.  However, the judge was not impressed by this mitigation, saying:

“ This, however, does not mitigate in any way the fact the defendant has flagrantly breached the deportation order and as at 25 March had been convicted on three previous occasions for a breach of that order. Notwithstanding his deportation in January 2004 he chose to again abuse the Hong Kong legal system and re-entered Hong Kong within a period of two months under yet another name.

… Suffice it to say that contrary to any suggestion that the defendant is a model citizen paying his taxes, he was in Hong Kong illegally, knowing he was in Hong Kong illegally. Knowing that he was in breach of the deportation order he acquired residence status on a falsehood.

… As I say, the defendant showed a flagrant defiance of the law of Hong Kong in 2004 when he re‑entered, having been deported only in January of that year … bringing up a family and running a business does not detract from the degree of criminality.  He has used and abused his falsely acquired status, knowing full well the consequences of entering Hong Kong in breach of a deportation order.”

17.  Mr Allman-Brown referred the judge to the decision of the Court of Appeal in HKSAR v Joned Asri CACC 345/2012, unreported, 26 March 2013 in which the Court of Appeal reduced an overall sentence from 59 months’ imprisonment to 33 months’ imprisonment.  However, the judge did not find this case particularly helpful since it involved a defendant of prior clear record.  Although he did note that, in that case, the Court of Appeal employed a starting point of 27 months for the first breach of deportation order offence and a starting point of 42 months for the tenth such offence and that it said a starting point in excess of 42 months was not justified if the offence was no more than a repeat of earlier offences.

18.  The judge then went on to discuss the starting point he would adopt for each charge.  For the first charge he adopted a starting point of 30 months’ imprisonment, for the third charge a starting point of 36 months’ imprisonment and for the fourth charge a starting point of 42 months’ imprisonment.  In respect of the fourth charge he said that he would have adopted the same starting point as that which he had adopted for the third charge, namely 36 months’ imprisonment, but as the fourth charge was an offence committed whilst the applicant was on bail the starting point should be increased to take account of this aggravating factor.  After discounting these starting points by one third to allow for the applicant’s pleas of guilty he arrived at sentences of 20 months’ imprisonment for the first charge, 24 months for the third charge and 28 months for the fourth charge. 

19.  He then turned his attention to the second charge which was the offence of making a false declaration to an Immigration Officer. The judge noted that although the maximum sentence for this offence is higher than the maximum sentence for the breach of deportation order offence, the sentences imposed by the courts for the offence of making a false declaration tended to be lower than the sentences imposed for breach of a deportation order.  Furthermore he noted that in sentencing for this offence the courts made a distinction between offences which involved the use of a false travel document and those which did not.  The judge said that in all the circumstances he would adopt a starting point of 12 months’ imprisonment which he reduced to 8 months’ imprisonment to reflect the applicant’s plea of guilty. 

20.  The judge then turned to the question of whether or not he should make use of his power to order any of the sentences to be served consecutively to the others and for this purpose he had regard to the overall totality.  He said that for charges 1, 3 and 4 concerning the breach of a deportation order the appropriate totality was a sentence of 36 months’ imprisonment.  To achieve this totality he ordered that 4 months in respect of the sentence of the first charge should be served consecutively to the sentence of the fourth charge, with the remaining 16 months of that sentence to be served concurrently; in respect of the third charge he ordered that 4 months of the sentence of that charge be served consecutively to the sentence of the fourth charge with the remainder of the sentence of the third charge to be served concurrently.  The period of 4 months in respect of the first and third charges that he ordered to be served consecutively to the fourth charge he also ordered to be served consecutively to each other so that an additional 8 months was added to the 28 months imposed in respect of the fourth charge.

21.  In respect of the second charge the judge noted that it was a wholly different charge from the others but nevertheless it was part and parcel of the defendant’s efforts to remain in Hong Kong in breach of the deportation order.  He then said in respect of his sentence for this offence:

“To reflect the overall totality of the sentence which the defendant should serve in respect of all these four offences, I will order that 3 months of the 8 months imposed to run consecutive to the sentences I have imposed in respect of Charges 1, 3 and 4, and 5 months concurrent which makes a total sentence the defendant has to serve in respect of all four charges of 3 years and 3 months’ imprisonment.”

The grounds of appeal

22.  Attached to his Form XI the applicant has written a letter dated 15 December 2014.  In this letter the applicant complained that he received a heavier sentence than the sentence that his counsel advised him he was likely to receive.  He referred to the decision of the Court of Appeal in the Joned Asri case and relied on this decision to assert that he had been more severely dealt with by the judge.  He also referred to the hardship caused to his family by his incarceration. 

23.  He again wrote to the court on 19 March 2015 and 21 April 2015.  In addition to the letters the applicant himself wrote, his wife wrote to the court on 16 April 2015. 

24.  In his letters the applicant referred to the impact that his incarceration had had upon his business which was forced to close.  He also said that in the period that he was in Hong Kong he was paying his taxes and MPF and was conducting himself in accordance with Hong Kong law.  He claimed that he had never committed any crime in Hong Kong.  He also again referred to the impact his incarceration has had on his family in Hong Kong and on his family in Bangladesh.  He also complained about the sentence for the fourth charge which relates to a business trip he made into China on 2 February 2014 when he was on bail.  Attached to his letter of 21 April 2015 are documents relating to the health of his parents and his wife. 

25.  The letter of the applicant’s wife revealed that she and her daughter have enjoyed a very happy family life together with the applicant.  The daughter has just turned 18 and has been admitted to college. Although the applicant is not the biological father of the daughter his wife said that they get along as if they were.  She also referred in her letter to the impact that her husband’s incarceration has had upon the family business which has been forced to close and has rendered the applicant unable to pay off his debts to the bank.  This has caused stress to her as people come to her place to press for repayment of his debts.  She said that she suffers from dizziness, headache and high blood pressure.  She says that her doctor has diagnosed her hypertension as being due to the nervous tension under which she lives.  The stress upon her she says is exaggerated by the fact that she needs to look after her mother who is ill and her younger brother who suffered a stroke.  She implores the court, as an act of mercy, to return her husband to her as soon as possible.

Discussion

26.  There is no justifiable grievance that the applicant has been sentenced more harshly than the defendant in the Joned Asri case.  The facts of that case are quite different and not nearly as serious as the facts of this applicant’s case.

27.  The effect of his incarceration on his business and family cannot avail him.  After all, his opportunity to remain in Hong Kong, start a business and be a family man here all flow from his illegal entry into Hong Kong and his criminal conduct in deceiving the Immigration Department to allow him to remain here.  Furthermore, for offences as serious as these the prejudice that flows to innocent third parties will not normally be a reason to reduce an otherwise proper sentence.

28.  His claim that he has been a law-abiding citizen is nonsense.  His entry into Hong Kong and every day he stayed here was contrary to law.  He employed a person in his business contrary to law.  There is nothing law abiding about his residence in Hong Kong.

29.  Finally there is the applicant’s complaint in respect of the fourth charge.  In order to address this complaint it is necessary to explain what happened to the applicant after his arrest.  The applicant was arrested on 2 February 2014 on suspicion of having committed the offence of employing someone who was not lawfully employable, contrary to section 17I of the Immigration Ordinance.  He was placed on bail by the Immigration Department and told to report back to the Department on a certain date.  He was not told what he could or could not do and specifically he was not told that he could not leave Hong Kong.  This is not surprising as it was only law enforcement agency bail and not court ordered bail.  At this time the Immigration Department did not know that the applicant had multiple identities and was in breach of a deportation order.

30.  It was whilst on Immigration Department bail that the applicant committed the fourth offence.  From the applicant’s point of view the fourth offence was just another business trip and one of many he had taken in the past in order to carry on his business.  There is, in his eyes, nothing special about this trip and no reason to single it out from all his other trips.  In this respect it is worth bearing in mind that as part of his mitigation his counsel revealed that since his entry into Hong Kong in 2004 under his current identity the applicant had left and re-entered Hong Kong nearly 300 times.

31.  The rationale for treating the fact that an offence was committed whilst on bail for an another offence as an aggravating factor is that such conduct by an offender demonstrates persistent offending and a total disregard of the law.  Arguably, the fourth offence did not, by itself, demonstrate that, but the whole of the applicant’s immigration history with Hong Kong certainly did.  That this applicant needs sentences containing additional deterrence can hardly be disputed.  But the Court of Appeal is not concerned with errors in the sentencing process unless the final sentence is manifestly excessive.  Then the error may explain how it was that the judge came to impose an excessive sentence.  Given this offender’s history I do not see that the applicant could reasonably argue that his final sentence was excessive.

Conclusion

32.  For these reasons I was not persuaded that any of the complaints of the applicant were reasonably arguable.  I therefore refused him leave to appeal his sentence.

33.  I informed the applicant of his right to renew his application before the Court of Appeal and I also informed him of the existence of the power contained in section 83W(1) of the Criminal Procedure Ordinance, Cap 221.  I explained the nature of this power to him and of the possibility that should he renew his application before the Court of Appeal that court may exercise this power against him.