DCCC531/2012 HKSAR v. MOHAMMED QAMAALUDDIN AHMED AND OTHERS - LawHero
DCCC531/2012
HKSAR v. MOHAMMED QAMAALUDDIN AHMED AND OTHERS
區域法院（刑事）Deputy District Judge E. Lin22/7/2012
DCCC531/2012
A A
DCCC531/2012
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 531 OF 2012
C C
----------------------
D D
HKSAR
E v. E
Mohammed Qamaaluddin Ahmed
F also known as F
Quadri Kamal Uddin,
G Uddin Mohammad Sousuf, G
Aleemuddin Mohemed,
Mohammed Yousufuddin,
H Sousuf Uddin Mohammad H
and Mohammed Aleemuddin
I ---------------------- I
J Before: Deputy District Judge E. Lin J
Date: 23 July 2012 at 3.34 pm
Present: Mr Kwok Wing-lung, SPP of the Department of Justice,
K for HKSAR K
Mr Yeung Sai-yuen, of Messrs Foo, Leung & Yeung,
assigned by the Director of Legal Aid, for the
L L
Defendant
Offence: (1) to (18) Breach of deportation order (違反遞解離境令)
M M
---------------------
N Reasons for Sentence N
O --------------------- O
P 1. In these proceedings, the defendant, Mohammed P
Qamaaluddin Ahmed, also known as Quadri Kamal Uddin, Uddin
Q Mohammad Sousuf, Aleemuddin Mohemed, Mohammed Yousufuddin, Q
Sousuf Uddin Mohammad and Mohammed Aleemuddin, faced a total of
R R
18 counts of “breach of deportation order”, contrary to
section 43(1)(a) of the Immigration Ordinance, Chapter 115, Laws
S S
of Hong Kong. He pleaded guilty to all the charges and was
T convicted upon his plea and admission of facts. T
U U
CRT26/23.7.2012/SC 1 DCCC531/2012/Sentence
V V
A A
Facts
B B
2. The facts reveal that sometime after midnight on 20
C April 2012, the defendant was found acting suspiciously at C
Queen’s Road West by the police. He was stopped and asked to
D show his document of identity. He produced a passport under the D
name of Mohammed Qamaaluddin Ahmed, showing he came to Hong Kong
E E
on the 17th day of March 2012. He was allowed to stay until 31
March 2012. He was therefore arrested for overstaying.
F F
G 3. Further investigation revealed that the defendant had G
been known also as Quadri Kamal Uddin who was subject to a
H deportation order issued on 14th October 2003. Under caution, he H
admitted that he first came to Hong Kong in 1993 and had been
I I
deported. He then used the name of Quadri Kamal Uddin to enter
Hong Kong between 1993 and 2002. Since June 2011, he had been
J J
using the name of Mohammed Qamaaluddin Ahmed to come to
K
Hong Kong. He changed his name to apply for a passport because K
he knew that he was subject to a deportation order in Hong Kong.
L He claimed that he came to Hong Kong for sightseeing and had L
forgotten about the expiration date of his visa.
M M
4. Upon further questioning under caution he admitted he
N N
came to Hong Kong with a passport bearing the name of Mohammed
Qamaaluddin Ahmed. Immigration record revealed that the
O O
defendant entered and left Hong Kong under that name on 35
P occasions between the 11 th day of June 2011 to 17th March 2012: 18 P
of which were arrivals and 17 departures. He also admitted that
Q he understood the effect of a deportation order in that he was Q
prohibited from being in Hong Kong at any time thereafter.
R R
Presumably that was why he changed his name to apply for a
passport. He professed that he liked Hong Kong very much. That
S S
is why he came to Hong Kong in defiance of the Prohibition
T Order. T
U U
CRT26/23.7.2012/SC 2 DCCC531/2012/Sentence
V V
A A
5. The present charges were about the 18 occasions in
which he came to Hong Kong by using the passport in the name of
B B
Mohammed Qamaaluddin Ahmed. The passport was confirmed to be
C genuine in that it was issued by the Indian authorities. C
D Authorites D
E E
6. Offences of this kind are serious in Hong Kong. The
maximum sentence in the statute book is 7 years of imprisonment.
F F
As has been summarised by the editors of Archbold Hong Kong
G 2012, at paragraph 27-156: G
H “This offence is most serious in the offence of H
unlawful remaining in Hong Kong. A sentence of
18 months’ imprisonment after plea for a first
I offender of this type could not be criticised. A I
sentence of 21 months’ imprisonment may be justified
J for a second breach, and for a persistent offender who J
has been convicted of other immigration offences
before and coupled with a history of breaching
K deportation orders, the maximum available sentence K
should be taken as the starting point. As was shown in
the case of Nguyen Tuan Anh (unreported)
L L
HCMA1091/2003, [2004] HKEC 30, a starting point of
3 years taken by the magistrate was held not to be
M excessive even though offence was tried summarily as M
the case involved an offender, a persistent offender
with a history of breaching deportation orders and
N committing offences under Cap.115.” N
O 7. In fact, the editors of Archbold went on further to O
say:
P P
“In dealing with a persistent and contumelious
Q offender, a prosecution in the District Court should Q
be considered where the offender will receive a more
severe sentence or indictment for further deterrence.”
R R
8. The prosecution have kindly drawn my attention to two
S S
recent authorities decided by the Court of Appeal. In the case
T of Nguyen Anh Cuong CACC414/2011, the learned appeal judges were T
asked to deal with an appeal from the District Court against a
U defendant on five charges of conspiracy to steal and two U
CRT26/23.7.2012/SC 3 DCCC531/2012/Sentence
V V
A A
offences under the Immigration Ordinance, one of which being
breach of a deportation order.
B B
C 9. In the judgment, the learned appeal judge had observed C
that:
D D
“16...this was the fourth time that the applicant had
E breached the deportation order for which he had E
demonstrated ‘an alarming level of persistence.’ He
took a starting point for this charge of 30 months’
F imprisonment, which he reduced by one-third to 20 F
months for the plea of guilty. He then ordered the two
G sentences in respect of Charges 8 and 9 to run G
concurrently with each other but consecutively to the
sentences on Charges 1 to 5, making an overall
H sentence of 64 months. It is against that sentence H
that the applicant now appeals...
I I
J 17. We say at once that the overall sentence of J
44 months’ imprisonment, duly (and appropriately)
enhanced in respect of the five conspiracy-to-steal
K charges, was in no way manifestly excessive... K
L L
18. However, what causes us particular disquiet in
M this case is the fact that this is the fourth time the M
applicant, a native of Vietnam, has breached his
deportation order. He first breached the order in 2004
N when he was found unlawfully in Hong Kong in N
possession of a forged Hong Kong ID card. He breached
it a second time in 2005 when again found unlawfully
O O
in Hong Kong, at which time he was arrested for going
equipped for stealing. His third breach of the order
P was in 2008 when yet again he was found unlawfully in P
Hong Kong and was arrested for theft. This is the
fourth time he has breached the order and the third
Q time he has appeared before the courts for breaching Q
the order in conjunction with an offence of
dishonesty. It is not difficult to see the applicant
R R
has not merely displayed a persistent contempt for
Hong Kong’s immigration laws but that an incident of
S his coming here, if not his underlying purpose, has S
been to steal.
T 21. It should be remembered that the maximum sentence T
for breaching such an order under section 43(1)(a)(i)
U
of the Immigration Ordinance is 7 years’ imprisonment U
on indictment. The applicant must understand that if
CRT26/23.7.2012/SC 4 DCCC531/2012/Sentence
V V
A A
he unlawfully enters Hong Kong again in defiance of
the deportation order, a starting point well in excess
B of 3 years’ imprisonment for this offence alone is B
likely to be adopted.”
C C
Sentencing Considerations
D D
10. In this case, I am dealing with 18 counts of breach of
E E
deportation order. On 18 different occasions, the defendant had
acted in defiance of a deportation order imposed against him on
F F
the 14th day of October 2003. His behaviour showed a persistent
G contempt and a cynical disregard of the laws of Hong Kong. It is G
true that he was not caught during this period of time. He was
H caught for overstaying. That does not make the offence less H
serious.
I I
11. The defendant is no stranger to the law. Between 1994
J J
and 2003, on no less than five occasions the defendant had been
K
convicted of offences relating to immigration legislations. K
Therefore, he could not expect leniency as can a person of
L previous good character. It is true that there is no evidence L
that the defendant had come to Hong Kong with intention of
M committing crime, yet the mere fact that he had been in breach M
of the Hong Kong law repeatedly is something this court must
N N
take into consideration. I think it is important that this court
must send out a clear message to the society that such behaviour
O O
will be severely punished.
P P
12. Having considered the authorities shown to me and that
Q cited and discussed by the editors of Archbold, I consider a Q
starting point of 36 months’ imprisonment appropriate in the
R R
circumstances. Since the defendant has pleaded guilty, it will
be reduced to 24 for each count.
S S
T T
U U
CRT26/23.7.2012/SC 5 DCCC531/2012/Sentence
V V
A A
Mitigations
B B
13. I turn to consider the submissions put forward by the
C defence lawyer. The personal circumstances which have been put C
forward to this court, in my view, are not valid mitigating
D circumstances. This court is sympathetic to his family in India D
for they will be left on their own now he is serving time in
E E
Hong Kong. Yet the defendant can only have himself to blame. He
had come to Hong Kong unlawfully not only once but 18 times.
F F
G 14. For the reasons stated above, I will order a term of G
imprisonment of 24 months for each count to run concurrently in
H all 18 charges. In all, the defendant is to serve 24 months’ H
imprisonment.
I I
J J
K K
(E. Lin)
L L
Deputy District Judge
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT26/23.7.2012/SC 6 DCCC531/2012/Sentence
V V
A A
DCCC531/2012
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 531 OF 2012
C C
----------------------
D D
HKSAR
E v. E
Mohammed Qamaaluddin Ahmed
F also known as F
Quadri Kamal Uddin,
G Uddin Mohammad Sousuf, G
Aleemuddin Mohemed,
Mohammed Yousufuddin,
H Sousuf Uddin Mohammad H
and Mohammed Aleemuddin
I ---------------------- I
J Before: Deputy District Judge E. Lin J
Date: 23 July 2012 at 3.34 pm
Present: Mr Kwok Wing-lung, SPP of the Department of Justice,
K for HKSAR K
Mr Yeung Sai-yuen, of Messrs Foo, Leung & Yeung,
assigned by the Director of Legal Aid, for the
L L
Defendant
Offence: (1) to (18) Breach of deportation order (違反遞解離境令)
M M
---------------------
N Reasons for Sentence N
O --------------------- O
P 1. In these proceedings, the defendant, Mohammed P
Qamaaluddin Ahmed, also known as Quadri Kamal Uddin, Uddin
Q Mohammad Sousuf, Aleemuddin Mohemed, Mohammed Yousufuddin, Q
Sousuf Uddin Mohammad and Mohammed Aleemuddin, faced a total of
R R
18 counts of “breach of deportation order”, contrary to
section 43(1)(a) of the Immigration Ordinance, Chapter 115, Laws
S S
of Hong Kong. He pleaded guilty to all the charges and was
T convicted upon his plea and admission of facts. T
U U
CRT26/23.7.2012/SC 1 DCCC531/2012/Sentence
V V
A A
Facts
B B
2. The facts reveal that sometime after midnight on 20
C April 2012, the defendant was found acting suspiciously at C
Queen’s Road West by the police. He was stopped and asked to
D show his document of identity. He produced a passport under the D
name of Mohammed Qamaaluddin Ahmed, showing he came to Hong Kong
E E
on the 17th day of March 2012. He was allowed to stay until 31
March 2012. He was therefore arrested for overstaying.
F F
G 3. Further investigation revealed that the defendant had G
been known also as Quadri Kamal Uddin who was subject to a
H deportation order issued on 14th October 2003. Under caution, he H
admitted that he first came to Hong Kong in 1993 and had been
I I
deported. He then used the name of Quadri Kamal Uddin to enter
Hong Kong between 1993 and 2002. Since June 2011, he had been
J J
using the name of Mohammed Qamaaluddin Ahmed to come to
K
Hong Kong. He changed his name to apply for a passport because K
he knew that he was subject to a deportation order in Hong Kong.
L He claimed that he came to Hong Kong for sightseeing and had L
forgotten about the expiration date of his visa.
M M
4. Upon further questioning under caution he admitted he
N N
came to Hong Kong with a passport bearing the name of Mohammed
Qamaaluddin Ahmed. Immigration record revealed that the
O O
defendant entered and left Hong Kong under that name on 35
P occasions between the 11 th day of June 2011 to 17th March 2012: 18 P
of which were arrivals and 17 departures. He also admitted that
Q he understood the effect of a deportation order in that he was Q
prohibited from being in Hong Kong at any time thereafter.
R R
Presumably that was why he changed his name to apply for a
passport. He professed that he liked Hong Kong very much. That
S S
is why he came to Hong Kong in defiance of the Prohibition
T Order. T
U U
CRT26/23.7.2012/SC 2 DCCC531/2012/Sentence
V V
A A
5. The present charges were about the 18 occasions in
which he came to Hong Kong by using the passport in the name of
B B
Mohammed Qamaaluddin Ahmed. The passport was confirmed to be
C genuine in that it was issued by the Indian authorities. C
D Authorites D
E E
6. Offences of this kind are serious in Hong Kong. The
maximum sentence in the statute book is 7 years of imprisonment.
F F
As has been summarised by the editors of Archbold Hong Kong
G 2012, at paragraph 27-156: G
H “This offence is most serious in the offence of H
unlawful remaining in Hong Kong. A sentence of
18 months’ imprisonment after plea for a first
I offender of this type could not be criticised. A I
sentence of 21 months’ imprisonment may be justified
J for a second breach, and for a persistent offender who J
has been convicted of other immigration offences
before and coupled with a history of breaching
K deportation orders, the maximum available sentence K
should be taken as the starting point. As was shown in
the case of Nguyen Tuan Anh (unreported)
L L
HCMA1091/2003, [2004] HKEC 30, a starting point of
3 years taken by the magistrate was held not to be
M excessive even though offence was tried summarily as M
the case involved an offender, a persistent offender
with a history of breaching deportation orders and
N committing offences under Cap.115.” N
O 7. In fact, the editors of Archbold went on further to O
say:
P P
“In dealing with a persistent and contumelious
Q offender, a prosecution in the District Court should Q
be considered where the offender will receive a more
severe sentence or indictment for further deterrence.”
R R
8. The prosecution have kindly drawn my attention to two
S S
recent authorities decided by the Court of Appeal. In the case
T of Nguyen Anh Cuong CACC414/2011, the learned appeal judges were T
asked to deal with an appeal from the District Court against a
U defendant on five charges of conspiracy to steal and two U
CRT26/23.7.2012/SC 3 DCCC531/2012/Sentence
V V
A A
offences under the Immigration Ordinance, one of which being
breach of a deportation order.
B B
C 9. In the judgment, the learned appeal judge had observed C
that:
D D
“16...this was the fourth time that the applicant had
E breached the deportation order for which he had E
demonstrated ‘an alarming level of persistence.’ He
took a starting point for this charge of 30 months’
F imprisonment, which he reduced by one-third to 20 F
months for the plea of guilty. He then ordered the two
G sentences in respect of Charges 8 and 9 to run G
concurrently with each other but consecutively to the
sentences on Charges 1 to 5, making an overall
H sentence of 64 months. It is against that sentence H
that the applicant now appeals...
I I
J 17. We say at once that the overall sentence of J
44 months’ imprisonment, duly (and appropriately)
enhanced in respect of the five conspiracy-to-steal
K charges, was in no way manifestly excessive... K
L L
18. However, what causes us particular disquiet in
M this case is the fact that this is the fourth time the M
applicant, a native of Vietnam, has breached his
deportation order. He first breached the order in 2004
N when he was found unlawfully in Hong Kong in N
possession of a forged Hong Kong ID card. He breached
it a second time in 2005 when again found unlawfully
O O
in Hong Kong, at which time he was arrested for going
equipped for stealing. His third breach of the order
P was in 2008 when yet again he was found unlawfully in P
Hong Kong and was arrested for theft. This is the
fourth time he has breached the order and the third
Q time he has appeared before the courts for breaching Q
the order in conjunction with an offence of
dishonesty. It is not difficult to see the applicant
R R
has not merely displayed a persistent contempt for
Hong Kong’s immigration laws but that an incident of
S his coming here, if not his underlying purpose, has S
been to steal.
T 21. It should be remembered that the maximum sentence T
for breaching such an order under section 43(1)(a)(i)
U
of the Immigration Ordinance is 7 years’ imprisonment U
on indictment. The applicant must understand that if
CRT26/23.7.2012/SC 4 DCCC531/2012/Sentence
V V
A A
he unlawfully enters Hong Kong again in defiance of
the deportation order, a starting point well in excess
B of 3 years’ imprisonment for this offence alone is B
likely to be adopted.”
C C
Sentencing Considerations
D D
10. In this case, I am dealing with 18 counts of breach of
E E
deportation order. On 18 different occasions, the defendant had
acted in defiance of a deportation order imposed against him on
F F
the 14th day of October 2003. His behaviour showed a persistent
G contempt and a cynical disregard of the laws of Hong Kong. It is G
true that he was not caught during this period of time. He was
H caught for overstaying. That does not make the offence less H
serious.
I I
11. The defendant is no stranger to the law. Between 1994
J J
and 2003, on no less than five occasions the defendant had been
K
convicted of offences relating to immigration legislations. K
Therefore, he could not expect leniency as can a person of
L previous good character. It is true that there is no evidence L
that the defendant had come to Hong Kong with intention of
M committing crime, yet the mere fact that he had been in breach M
of the Hong Kong law repeatedly is something this court must
N N
take into consideration. I think it is important that this court
must send out a clear message to the society that such behaviour
O O
will be severely punished.
P P
12. Having considered the authorities shown to me and that
Q cited and discussed by the editors of Archbold, I consider a Q
starting point of 36 months’ imprisonment appropriate in the
R R
circumstances. Since the defendant has pleaded guilty, it will
be reduced to 24 for each count.
S S
T T
U U
CRT26/23.7.2012/SC 5 DCCC531/2012/Sentence
V V
A A
Mitigations
B B
13. I turn to consider the submissions put forward by the
C defence lawyer. The personal circumstances which have been put C
forward to this court, in my view, are not valid mitigating
D circumstances. This court is sympathetic to his family in India D
for they will be left on their own now he is serving time in
E E
Hong Kong. Yet the defendant can only have himself to blame. He
had come to Hong Kong unlawfully not only once but 18 times.
F F
G 14. For the reasons stated above, I will order a term of G
imprisonment of 24 months for each count to run concurrently in
H all 18 charges. In all, the defendant is to serve 24 months’ H
imprisonment.
I I
J J
K K
(E. Lin)
L L
Deputy District Judge
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT26/23.7.2012/SC 6 DCCC531/2012/Sentence
V V