由此
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B DCCC 578/2012 B
IN THE DISTRICT COURT OF THE
C C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO 578 OF 2012 D
____________________
E E
BETWEEN
F HKSAR F
v
G G
SUKMA GANI also known as
H DICKY YUSUP and DAPID MANAR (D1) H
JONED ASRI also know as
I I
TRI WAHYU (D2)
J J
____________________
Before: Deputy District Judge KH Cheang K
K
Date: 14 August 2012 at 9:30 am
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Present: Miss Clara Ma, Public Prosecutor of the
Department of Justice, for HKSAR M
M
Mr Lok Hing Wah, of Messrs Lok Hing Wah &
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Co, instructed by the Legal Aid Department, for
O
D1 and D2 O
Offences: (1)-(14) Breach of deportation order (違反遞
P P
解離境令)
Q ____________________ Q
Reasons for Sentence
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____________________
S Introduction S
1. The fourteen charges in the present case are all breach of deportation T
T
order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap.115.
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由此
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B D1 is convicted upon his own plea of the first four charges whereas D2 is B
convicted upon his own plea of the last ten charges.
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D Facts D
2. On the afternoon of 14 March 2012, D1 and D2 were intercepted and
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arrested by the police outside No.145 Hennessy Road, Wan Chai, Hong
F Kong. F
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3. It was subsequently found that D1’s fingerprints matched with those
H of DICKY YUSUP. Deportation Order (IMM CR 295/00) dated 8 May H
2000 (“Deportation Order 1”) was in force against D1 under the name
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DICKY YUSUP. Under Deportation Order 1, D1 was required to leave
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Hong Kong and prohibited from being in Hong Kong at any time thereafter.
An Immigration Officer served and explained a copy of Deportation Order K
K
1 to D1 on 13 July 2000. D1 was deported from Hong Kong to Jakarta,
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Indonesia on 31 July 2000.
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4. In breach of Deportation Order 1, D1 entered Hong Kong on the
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following dates under the name of SUKMA GANI:
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st
(1) 26 May 2009 (1 Charge);
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(2) 20 June 2009 (2nd Charge);
Q (3) 26 June 2009 (3rd Charge); and Q
(4) 9 March 2012 (4th Charge).
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S 5. It was subsequently found that D2’s fingerprints matched with those S
of TRI WAHYU also known as Wahyu TRI. Deportation Order (IMM CR
T T
299/10) dated 5 May 2010 (“Deportation Order 2”) was in force against D2
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由此
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B under the name TRI WAHYU also known as Wayhu TRI. Under B
Deportation Order 2, D2 was required to leave Hong Kong and prohibited
C C
from being in Hong Kong at any time thereafter. An Immigration Officer
D served and explained a copy of Deportation Order 2 to D2 on 17 May 2010. D
D2 was deported from Hong Kong to Jakarta, Indonesia on 17 May 2010.
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F 6. In breach of Deportation Order 2, D2 entered Hong Kong on the F
following dates under the name of JONED ASRI:
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H (1) 20 June 2010 (5th Charge); H
(2) 17 July 2010 (6th Charge);
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th
(3) 23 September 2010 (7 Charge);
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J (4) 21 October 2010 (8th Charge);
(5) 21 November 2010 (9th Charge); K
K
th
(6) 1 March 2011 (10 Charge);
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(7) 19 November 2011 (11th Charge);
(8) 14 December 2011 (12th Charge); M
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th
(9) 3 February 2012 (13 Charge); and
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(10) 29 February 2012 (14th Charge).
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The defendants’ previous criminal conviction records and antecedents
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7. D1 has 2 previous convictions of theft sentenced in March 2000 and
Q July 2007 and 1 previous conviction of breach of deportation order Q
sentenced in July 2007. He was born in Indonesia in December 1974 and is
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now 37 years old. He used to be a vehicle maintenance worker and clothes
S seller. He is married with a 2-year-old daughter. S
T T
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由此
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B 8. D2 has one previous conviction of theft sentenced in February 2010 B
under the name TRI WAHYU. He was born in Indonesia in March 1960
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and is now 52. He used to be a vehicle maintenance worker. He is married
D with a 20-year-old son. D
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Mitigation
F 9. In mitigation, Mr Lok submitted that both defendants pleaded guilty F
to the charges thus showing they were remorseful. Mr Lok therefore asked
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this court to impose a lenient sentence.
H H
Sentencing authorities
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10. The maximum term of imprisonment for an offence under section
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43(1)(a) of the Immigration Ordinance is 7 years. This offence is
considered to be a more serious offence than unlawfully remaining in Hong K
K
Kong: HKSAR v Cortez Emily Bisoy HCMA457/2002. In Cortez Emily
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Bisoy, Deputy High Court Judge McMahon (as he then was) remarked that
a sentence of 18 months’ imprisonment after plea for the first breach of M
M
deportation order could not be criticized.
N N
O
11. In HKSAR v Gabriel Malou Lantin [2004] HKCU 1065, a starting O
point of 30 months’ imprisonment as the second breach of deportation
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order was approved on appeal. Madam Justice Beeson commented that a
Q first time breach would warrant a starting point of 27 months’ Q
imprisonment.
R R
S 12. A sentence of 21 months’ imprisonment for a second breach of S
deportation order was accepted by the Court of Appeal in HKSAR v Pham
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Van Tuan CACC 272/2010 where the appellant had on three previous
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由此
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B occasions been convicted of unlawfully remaining in Hong Kong and B
sentenced to 18 months’ imprisonment for breach of a deportation order. In
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HKSAR v Tran Viet Thanh [2012] 1 HKLRD 903, the Court of Appeal
D considered a sentence of 20 months’ imprisonment after plea for the second D
breach of deportation order appropriate.
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F 13. In HKSAR v Mohammad Shehzad HCMA 793/2007, a sentence of 20 F
months’ imprisonment after plea for the third breach of deportation order
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was approved on appeal.
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14. In HKSAR v Mac Nhu-ky DCCC 401/2012, a sentence of 24 months’
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imprisonment after plea was imposed for the fourth breach of deportation
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order.
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15. In HKSAR v Pham Van Hung CACC 14/2011, the Court of Appeal
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considered a sentence of 28 months’ imprisonment after plea for the fifth
breach of deportation order appropriate. M
M
N N
16. In HKSAR v Bui Ngoc Thang (裴玉勝) DCCC 464/2012, a sentence
O of 28 months’ imprisonment after plea was imposed for the seventh breach O
of deportation order.
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Q Sentence Q
17. D1 has one previous conviction of breach of deportation order, thus
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st th
making the 1 to 4 Charges his second to fifth breach of deportation order.
S In light of the aforesaid sentencing authorities, I will adopt the following S
starting points for the following charges against D1:
T T
U U
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由此
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B 1st Charge (D1’s second breach): 30 months’ imprisonment B
2nd Charge (D1’s third breach): 30 months’ imprisonment
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3rd Charge (D1’s fourth breach): 36 months’ imprisonment
D 4th Charge (D1’s fifth breach): 42 months’ imprisonment D
E E
18. One-third discount is given to D1 for each of the 1st to 4th Charges
F for his guilty plea, thus reducing the sentence for the 1st, 2nd, 3rd and 4th F
Charges to an imprisonment of 20 months, 20 months, 24 months and 28
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months respectively. There being no other valid mitigating features
H justifying any further reduction in sentence, D1 is sentenced to the H
aforesaid terms of imprisonment.
I I
J J
19. Having considered the totality principle, I order that 3 months in
each of the 1st to the 3rd Charges to run consecutively with the 28 months in K
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th
the 4 Charge, thus making a total of 37 months’ imprisonment for D1.
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20. D2 has no previous conviction of breach of deportation order, thus M
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making the 5 to 14 Charges his first to tenth breach of deportation order.
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In light of the aforesaid sentencing authorities, I will adopt the following
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starting points for the following charges against D2: O
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5th Charge (D2’s first breach): 27 months’ imprisonment
Q 6th Charge (D2’s second breach): 30 months’ imprisonment Q
7th Charge (D2’s third breach): 30 months’ imprisonment
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8th Charge (D2’s fourth breach): 36 months’ imprisonment
S 9th Charge (D2’s fifth breach): 42 months’ imprisonment S
10th Charge (D2’s sixth breach): 42 months’ imprisonment
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11th Charge (D2’s seventh breach): 42 months’ imprisonment
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由此
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B 12th Charge (D2’s eighth breach): 48 months’ imprisonment B
13th Charge (D2’s ninth breach): 48 months’ imprisonment
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14th Charge (D2’s tenth breach): 48 months’ imprisonment
D D
21. One-third discount is given to D2 for each of the 5th to 14th Charges
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for his guilty plea, thus making D2’s individual sentences after one-third
F discount as follows: F
G G
th
5 Charge (D2’s first breach): 18 months’ imprisonment
H 6th Charge (D2’s second breach): 20 months’ imprisonment H
7th Charge (D2’s third breach): 20 months’ imprisonment
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th
8 Charge (D2’s fourth breach): 24 months’ imprisonment
J
J 9th Charge (D2’s fifth breach): 28 months’ imprisonment
10th Charge (D2’s sixth breach): 28 months’ imprisonment K
K
th
11 Charge (D2’s seventh breach): 28 months’ imprisonment
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12th Charge (D2’s eighth breach): 32 months’ imprisonment
13th Charge (D2’s ninth breach): 32 months’ imprisonment M
M
th
14 Charge (D2’s tenth breach): 32 months’ imprisonment
N N
O
There being no other valid mitigating features justifying any further O
reduction in sentence, D2 is sentenced to the aforesaid terms of
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imprisonment.
Q Q
22. D2 committed breach of deportation order for ten times between 20
R R
June 2010 and 29 February 2012 thus showing his flagrant defiance of the
S law in Hong Kong. A deterrent sentence is required. Having considered the S
totality principle, I order that 3 months in each of the 5 th to the 13th Charges
T T
U U
V V
由此
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B to run consecutively with the 32 months in the 14th Charge, thus making a B
total of 59 months’ imprisonment for D2.
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D D
KH Cheang
E E
Deputy District Judge
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