DCCC167/2012 HKSAR v. IPAN, ALSO KNOWN AS IVAN SULAIMAN - LawHero
DCCC167/2012
HKSAR v. IPAN, ALSO KNOWN AS IVAN SULAIMAN
區域法院（刑事）Deputy District Judge Charles J Chan15/4/2012
DCCC167/2012
A A
DCCC167/2012
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 167 OF 2012
C C
----------------------
D D
HKSAR
E v. E
Ipan, also known as Ivan Sulaiman
F F
----------------------
G G
Before: Deputy District Judge Charles J Chan
Date: 16 April 2012 at 3.34 pm
H Present: Mr Winston Chan, SPP of the Department of Justice, for H
HKSAR
Mr Ng Hung-sui, Kenneth, of Ng, Au Yeung & Partners,
I I
assigned by the Director of Legal Aid, for the
Defendant
J Offence: (1) & (4) Making a false representation to an J
Immigration assistant (向入境事務助理員作出虛假陳述)
(2) & (5) Using a false travel document (使用虛假的旅行證
K K
件)
(3) & (6) Breach of deportation order (違反遞解離境令)
L L
---------------------
M M
Reasons for Sentence
N --------------------- N
1. The defendant has pleaded guilty to six charges,
O O
namely:
P P
(1) Making a false representation to an Immigration
Q assistant (Charge 1), contrary to section 42(1)(a) Q
of the Immigration Ordinance (the Ordinance).
R R
(2) Using a false travel document (Charge 2), contrary
S to section 42(2)(b) of the Ordinance. S
T (3) Breach of deportation order (Charge 3), contrary T
to section 43(1)(a) of the Ordinance.
U U
V CRT26/16.4.2012/LT 1 DCCC167/2012/Sentence V
A A
(4) Making a false representation to an Immigration
assistant (Charge 4), contrary to section 42(1(a)
B B
of the Ordinance.
C C
(5) Using a false travel document (Charge 5), contrary
D to section 42(2)(b) of the Ordinance. D
(6) Breach of deportation order (Charge 6), contrary
E E
to section 43(1)(a) of the Ordinance.
F F
THE FACTS
G 2. The defendant came to Hong Kong on 18th November 2011 G
by using Exhibit E1, an Indonesian passport numbered U915029, in
H H
the name of Ivan Sulaiman with the date of birth on 9 th September
1969.
I I
J 3. Investigation revealed that the defendant’s real date J
of birth is 29th August 1967. At all material time he was
K subject to a deportation order (IMMCR502/91), and he had been K
prohibited from entering Hong Kong since 12 th November 1991.
L L
4. On 20th November 2011, the defendant was stopped by a
M M
patrolling police constable, PC33818, at Yau Ma Tei and was later
N brought back to his guesthouse inside which he presented E1 to N
PC33818. Upon checking, the defendant was found to be permitted
O to stay until 19th November 2011 and thus arrested and cautioned. O
P P
5. During a further cautioned interview the defendant
admitted, inter alia, the followings:
Q Q
R
(1) he applied for E1 using the name of Ivan Sulaiman R
and a false date of birth (9 September 1969);
S S
(2) he used E1 because his identity was subject to a
T deportation order; T
U (3) the deportation order was issued against him back U
in 1991; and
V CRT26/16.4.2012/LT 2 DCCC167/2012/Sentence V
A A
(4) he came to Hong Kong on the present occasion for
B B
garment business purpose.
C C
6. A travel index check revealed that the defendant also
D used E1 to come to Hong Kong on 22 nd June 2010. D
E SENTENCING GUIDELINES AND PRINCIPLES E
Charges 1, 2, 4 and 5
F 7. In HKSAR v Yim Lee Kuen, unreported judgment, F
HCMA1187/2002, Deputy High Court Judge McMahon as he then was,
G G
having reviewed a number of relevant authorities, summarised that
offenders prosecuted pursuant to section 42(2) of the Immigration
H H
Ordinance would be liable to a penalty of 15 to 18 months’
I imprisonment after plea. I
J 8. Later, in HKSAR v Pahila [2007] 1 HKLRD 410, McMahon J J
commented that a starting point of 12 months’ imprisonment taken
K K
was overly lenient in relation to a charge of making a false
representation to an Immigration officer contrary to section
L L
42(1)(a) of the Immigration Ordinance. He also referred to his
M earlier judgment of Yim Lee Kuen, supra, and pointed out that: M
N “There was little logic in distinguishing levels N
of sentence for offences of using a false passport
to enter Hong Kong contrary to section 42(2) of
O the Immigration Ordinance, and of making a false O
statement to an Immigration officer by way of
producing a false passport contrary to section
P 42(1) of the Immigration Ordinance.” P
Q It was made clear that sentences after plea of up to 18 Q
months’ imprisonment are justified in respect of both sorts
R R
of offences.
S S
9. I note that the maximum sentence for section 42
T offences under the ordinance is 14 years. T
U Charges 3 and 6 U
V CRT26/16.4.2012/LT 3 DCCC167/2012/Sentence V
A A
10. In HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762, also
a judgment by Deputy Judge McMahon (as he then was), the offence
B B
of breach of deportation order was considered more serious than
C unlawfully remaining in Hong Kong (which attracts a 15 months’ C
imprisonment after plea) and it was noted that the maximum
D sentences for these offences are 7 years’ imprisonment and D
3 years’ imprisonment respectively. McMahon J remarked that:
E E
“That is sensible when it is remembered that the
F breach of a deportation order requires a F
deliberate circumvention of an order directed at
the offender personally.”
G G
11. He found that a sentence of 18 months’ imprisonment
H H
after plea cannot be criticised for a breach of deportation order
offence.
I I
J 12. In a recent judgment of the Court of Appeal, in HKSAR v J
Tran Viet Thanh [2012] 1 HKLRD 903, dealing also with the
K sentence imposed on a breach of deportation order offence, a K
sentence after plea of 20 months’ imprisonment in respect of an
L L
offender in CACC54/2011, who had two previous similar
convictions, was affirmed, whilst a sentence after plea of 18
M M
months’ imprisonment in respect of an offender in CACC221/2011,
N who had one previous similar conviction, was increased to 20 N
months’ imprisonment. These sentences were ordered to be served
O partly consecutive to the other immigration offences that the O
individual appellants were charged.
P P
THE DEFENDANT’S BACKGROUND AND MITIGATION
Q Q
13. The defendant is 44 years of age. He is a married man
R
and a father of four children aging from 2 to 14. He is rooted R
in Indonesia, although before he came to Hong Kong on this
S occasion he became unemployed for a period of time. I was told S
that the defendant has an outstanding debt of HK$100,000.
T T
14. In mitigation, the defendant pledges not to come to
U U
Hong Kong again and he came to Hong Kong this time merely to
V CRT26/16.4.2012/LT 4 DCCC167/2012/Sentence V
A A
accompany his friends although he would engage himself in the
sort of garment business dealing in Hong Kong in the past from
B B
which he could earn a moderate reward as compared to his debt.
C C
15. He asked for leniency.
D D
16. His guilty plea and that he has no previous similar
E conviction would be reflected in the sentence. E
F 17. I am asked to consider the totality principle and to F
impose a concurrent sentence, albeit that the defence lawyer
G G
confirmed that a partial consecutive sentence in respect of
Charges 3 and 6 to each other and to the rest of the other
H H
charges is appropriate.
I I
18. The defence noted and confirmed that Charges 1 to 3 are
J distinct charges to Charges 4 to 6 because they were based on J
similar facts taking place on different occasions.
K K
THE SENTENCE
L L
19. Having fully considered the background of this case and
M of the defendant, mitigation put forward by defence lawyer, all M
the relevant sentencing guidelines and principles, I sentence the
N defendant in this case as follows: N
O O
Charge 1 - 15 months.
P P
Charge 2 - 15 months, to be served concurrently to
Q Charge 1. Q
R Charge 3 - 18 months, 5 months to be served R
consecutively to Charges 1 and 2, making it a total of
S S
20 months’ imprisonment for Charges 1 to 3.
T T
Charge 4 - 15 months.
U U
V CRT26/16.4.2012/LT 5 DCCC167/2012/Sentence V
A A
Charge 5 - 15 months, to be served concurrently to
Charge 4.
B B
C Charge 6 - 18 months, 5 months to be served C
consecutively to Charges 4 and 5, making it a total of
D another 20 months’ imprisonment for Charges 4 to 6. D
E E
2 months out of the 20 months’ imprisonment on Charges
4 to 6 is to be served consecutively to the sentence on
F F
Charges 1 to 3.
G G
20. Therefore the total sentence on the defendant is
H 22 months’ imprisonment. H
I I
21. There is no basis to suspend any of these sentences.
J J
K K
L (Charles J Chan) L
Deputy District Judge
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V CRT26/16.4.2012/LT 6 DCCC167/2012/Sentence V
A A
DCCC167/2012
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 167 OF 2012
C C
----------------------
D D
HKSAR
E v. E
Ipan, also known as Ivan Sulaiman
F F
----------------------
G G
Before: Deputy District Judge Charles J Chan
Date: 16 April 2012 at 3.34 pm
H Present: Mr Winston Chan, SPP of the Department of Justice, for H
HKSAR
Mr Ng Hung-sui, Kenneth, of Ng, Au Yeung & Partners,
I I
assigned by the Director of Legal Aid, for the
Defendant
J Offence: (1) & (4) Making a false representation to an J
Immigration assistant (向入境事務助理員作出虛假陳述)
(2) & (5) Using a false travel document (使用虛假的旅行證
K K
件)
(3) & (6) Breach of deportation order (違反遞解離境令)
L L
---------------------
M M
Reasons for Sentence
N --------------------- N
1. The defendant has pleaded guilty to six charges,
O O
namely:
P P
(1) Making a false representation to an Immigration
Q assistant (Charge 1), contrary to section 42(1)(a) Q
of the Immigration Ordinance (the Ordinance).
R R
(2) Using a false travel document (Charge 2), contrary
S to section 42(2)(b) of the Ordinance. S
T (3) Breach of deportation order (Charge 3), contrary T
to section 43(1)(a) of the Ordinance.
U U
V CRT26/16.4.2012/LT 1 DCCC167/2012/Sentence V
A A
(4) Making a false representation to an Immigration
assistant (Charge 4), contrary to section 42(1(a)
B B
of the Ordinance.
C C
(5) Using a false travel document (Charge 5), contrary
D to section 42(2)(b) of the Ordinance. D
(6) Breach of deportation order (Charge 6), contrary
E E
to section 43(1)(a) of the Ordinance.
F F
THE FACTS
G 2. The defendant came to Hong Kong on 18th November 2011 G
by using Exhibit E1, an Indonesian passport numbered U915029, in
H H
the name of Ivan Sulaiman with the date of birth on 9 th September
1969.
I I
J 3. Investigation revealed that the defendant’s real date J
of birth is 29th August 1967. At all material time he was
K subject to a deportation order (IMMCR502/91), and he had been K
prohibited from entering Hong Kong since 12 th November 1991.
L L
4. On 20th November 2011, the defendant was stopped by a
M M
patrolling police constable, PC33818, at Yau Ma Tei and was later
N brought back to his guesthouse inside which he presented E1 to N
PC33818. Upon checking, the defendant was found to be permitted
O to stay until 19th November 2011 and thus arrested and cautioned. O
P P
5. During a further cautioned interview the defendant
admitted, inter alia, the followings:
Q Q
R
(1) he applied for E1 using the name of Ivan Sulaiman R
and a false date of birth (9 September 1969);
S S
(2) he used E1 because his identity was subject to a
T deportation order; T
U (3) the deportation order was issued against him back U
in 1991; and
V CRT26/16.4.2012/LT 2 DCCC167/2012/Sentence V
A A
(4) he came to Hong Kong on the present occasion for
B B
garment business purpose.
C C
6. A travel index check revealed that the defendant also
D used E1 to come to Hong Kong on 22 nd June 2010. D
E SENTENCING GUIDELINES AND PRINCIPLES E
Charges 1, 2, 4 and 5
F 7. In HKSAR v Yim Lee Kuen, unreported judgment, F
HCMA1187/2002, Deputy High Court Judge McMahon as he then was,
G G
having reviewed a number of relevant authorities, summarised that
offenders prosecuted pursuant to section 42(2) of the Immigration
H H
Ordinance would be liable to a penalty of 15 to 18 months’
I imprisonment after plea. I
J 8. Later, in HKSAR v Pahila [2007] 1 HKLRD 410, McMahon J J
commented that a starting point of 12 months’ imprisonment taken
K K
was overly lenient in relation to a charge of making a false
representation to an Immigration officer contrary to section
L L
42(1)(a) of the Immigration Ordinance. He also referred to his
M earlier judgment of Yim Lee Kuen, supra, and pointed out that: M
N “There was little logic in distinguishing levels N
of sentence for offences of using a false passport
to enter Hong Kong contrary to section 42(2) of
O the Immigration Ordinance, and of making a false O
statement to an Immigration officer by way of
producing a false passport contrary to section
P 42(1) of the Immigration Ordinance.” P
Q It was made clear that sentences after plea of up to 18 Q
months’ imprisonment are justified in respect of both sorts
R R
of offences.
S S
9. I note that the maximum sentence for section 42
T offences under the ordinance is 14 years. T
U Charges 3 and 6 U
V CRT26/16.4.2012/LT 3 DCCC167/2012/Sentence V
A A
10. In HKSAR v Cortez Emily Bisoy [2002] 2 HKLRD 762, also
a judgment by Deputy Judge McMahon (as he then was), the offence
B B
of breach of deportation order was considered more serious than
C unlawfully remaining in Hong Kong (which attracts a 15 months’ C
imprisonment after plea) and it was noted that the maximum
D sentences for these offences are 7 years’ imprisonment and D
3 years’ imprisonment respectively. McMahon J remarked that:
E E
“That is sensible when it is remembered that the
F breach of a deportation order requires a F
deliberate circumvention of an order directed at
the offender personally.”
G G
11. He found that a sentence of 18 months’ imprisonment
H H
after plea cannot be criticised for a breach of deportation order
offence.
I I
J 12. In a recent judgment of the Court of Appeal, in HKSAR v J
Tran Viet Thanh [2012] 1 HKLRD 903, dealing also with the
K sentence imposed on a breach of deportation order offence, a K
sentence after plea of 20 months’ imprisonment in respect of an
L L
offender in CACC54/2011, who had two previous similar
convictions, was affirmed, whilst a sentence after plea of 18
M M
months’ imprisonment in respect of an offender in CACC221/2011,
N who had one previous similar conviction, was increased to 20 N
months’ imprisonment. These sentences were ordered to be served
O partly consecutive to the other immigration offences that the O
individual appellants were charged.
P P
THE DEFENDANT’S BACKGROUND AND MITIGATION
Q Q
13. The defendant is 44 years of age. He is a married man
R
and a father of four children aging from 2 to 14. He is rooted R
in Indonesia, although before he came to Hong Kong on this
S occasion he became unemployed for a period of time. I was told S
that the defendant has an outstanding debt of HK$100,000.
T T
14. In mitigation, the defendant pledges not to come to
U U
Hong Kong again and he came to Hong Kong this time merely to
V CRT26/16.4.2012/LT 4 DCCC167/2012/Sentence V
A A
accompany his friends although he would engage himself in the
sort of garment business dealing in Hong Kong in the past from
B B
which he could earn a moderate reward as compared to his debt.
C C
15. He asked for leniency.
D D
16. His guilty plea and that he has no previous similar
E conviction would be reflected in the sentence. E
F 17. I am asked to consider the totality principle and to F
impose a concurrent sentence, albeit that the defence lawyer
G G
confirmed that a partial consecutive sentence in respect of
Charges 3 and 6 to each other and to the rest of the other
H H
charges is appropriate.
I I
18. The defence noted and confirmed that Charges 1 to 3 are
J distinct charges to Charges 4 to 6 because they were based on J
similar facts taking place on different occasions.
K K
THE SENTENCE
L L
19. Having fully considered the background of this case and
M of the defendant, mitigation put forward by defence lawyer, all M
the relevant sentencing guidelines and principles, I sentence the
N defendant in this case as follows: N
O O
Charge 1 - 15 months.
P P
Charge 2 - 15 months, to be served concurrently to
Q Charge 1. Q
R Charge 3 - 18 months, 5 months to be served R
consecutively to Charges 1 and 2, making it a total of
S S
20 months’ imprisonment for Charges 1 to 3.
T T
Charge 4 - 15 months.
U U
V CRT26/16.4.2012/LT 5 DCCC167/2012/Sentence V
A A
Charge 5 - 15 months, to be served concurrently to
Charge 4.
B B
C Charge 6 - 18 months, 5 months to be served C
consecutively to Charges 4 and 5, making it a total of
D another 20 months’ imprisonment for Charges 4 to 6. D
E E
2 months out of the 20 months’ imprisonment on Charges
4 to 6 is to be served consecutively to the sentence on
F F
Charges 1 to 3.
G G
20. Therefore the total sentence on the defendant is
H 22 months’ imprisonment. H
I I
21. There is no basis to suspend any of these sentences.
J J
K K
L (Charles J Chan) L
Deputy District Judge
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V CRT26/16.4.2012/LT 6 DCCC167/2012/Sentence V