A A
DCCC 793/2013
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 793 of 2013
C C
----------------------
D D
HKSAR
E v E
Kaewkert Kwanjai
F also known as Jum-Ai Kwanjai F
G ---------------------- G
Before: HH Judge S D’Almada Remedios
H Date: 7 October 2013 at 3.52 pm H
Present: Mr Alex Wong, PP of the Department of Justice, for
HKSAR
I Mr Chan Siu-pan, of Katherine Y W Or & Co, assigned by I
the Director of Legal Aid, for the defendant
J Offence: (1) to (9) Breach of deportation order (違反遞解離境令) J
K K
---------------------
L L
Reasons for Sentence
M --------------------- M
N 1. Defendant, you have pleaded guilty to nine charges N
before this court of a breach of deportation order, contrary to
O O
section 43(1)(a) of the Immigration Ordinance, Cap 115.
P P
2. On 27 June 2013 police intercepted you at the premises
Q on the 2nd floor of No 173 Hennessy Road, Wan Chai, Hong Kong. Q
Your fingerprints matched those of a person with another name
R called Jum-Ai Kwanjai against whom a deportation order dated 27 R
July 2005 was in force.
S S
3. Under the order you were required to leave Hong Kong
T T
and were prohibited from being in Hong Kong at any time
U thereafter. An immigration officer had served the order onto you U
CRT33/7.10.2013/SY 1 DCCC 793/2013/Sentence
V V
A A
and explained the order to you through an interpreter on 5
August 2005. The day after you were deported from Hong Kong to
B B
Bangkok.
C C
4. Immigration records confirmed that in breach of the
D order and under a different name of Kaewkert Kwanjai, you then D
entered Hong Kong on nine different dates which are the subject
E E
matters of the nine separate charges.
F 5. You entered into Hong Kong under that different name F
in Charge 1 on 2 January 2007, then left Hong Kong on 31 January
G G
and on the same day of your departure entered Hong Kong again on
31 January, the subject matter of Charge 2, left Hong Kong on 28
H H
February and entered Hong Kong on the same date, the subject
I matter of Charge 3. You stayed until 28 March 2007. I
J 6. Nine months from after your departure in March, you J
again entered Hong Kong on 23 December 2007, the subject matter
K K
of Charge 4. You then left Hong Kong on 21 January 2008 and re-
entered Hong Kong the following day, 22 January 2008, the
L L
subject matter of Charge 5. You then stayed until 17 February
M 2008. M
N 7. Eight months after your departure in February, you N
again entered Hong Kong on 27 October 2010 and that was the
O O
subject matter of Charge 6. You stayed here until 26 November
and the following day you re-entered Hong Kong on 27 November
P P
2010 which was the subject matter of Charge 7. You then departed
Q on 26 December 2010 and it was not until 2 years and 5 months Q
later you re-entered Hong Kong on 25 May 2013, the subject
R matter of Charge 8. You then departed from Hong Kong on 21 June, R
but on the same day of your departure you re-entered Hong Kong
S S
which was the subject matter of Charge 9.
T T
8. The period to which these charges apply was over a
U period of approximately 5 years that is from 2 January 2007 to U
CRT33/7.10.2013/SY 2 DCCC 793/2013/Sentence
V V
A A
21 June 2013. Over that time you were in Hong Kong for a total
of 241 days.
B B
C 9. Upon arrest and under caution, you stated that you C
knew you violated your deportation order and you came to Hong
D Kong to work and earn money. Jum-Ai was the surname of your D
father (your maiden name), however you changed the surname to
E E
that of your husband after you were married and applied for a
new passport after the old one had expired.
F F
G 10. Your solicitor, Mr Chan Siu-pan, has mitigated fully G
and thoroughly on your behalf before me today.
H H
11. You have eight previous convictions arising out of two
I I
appearances in court in 2005 and last year. Seven convictions
were for theft in 2005 and on 8 July 2013 you were sentenced to
J J
6 weeks’ imprisonment for the breach of condition of stay.
K
Resulting from that case whereby you overstayed in Hong Kong K
under your new name, the subject charges came to light.
L L
12. I am fully aware of the sentence that you are serving
M when I am considering the sentence to be imposed upon you in M
this case.
N N
13. I am informed by Mr Chan that you are 38 years of age.
O O
You were married in Thailand to a Hong Kong resident who is
P Thai. You were married in 2006. Since then you gave birth to P
two children who are aged 7 and 4. You have another son who is
Q aged 18. Q
R R
14. You had on the first occasion in 2007 entered Hong
Kong with your 9-month-old daughter to visit your husband and
S S
his family. From then on you believed as Hong Kong was your
T second home you came in and out of Hong Kong on your new T
passport with your newly married name.
U U
CRT33/7.10.2013/SY 3 DCCC 793/2013/Sentence
V V
A A
15. I take into account your strongest mitigating factor,
that is, that you have pleaded guilty to these offences.
B B
C 16. Both the prosecuting counsel, Mr Alex Wong, and your C
solicitor have referred me to a Court of Appeal case, HKSAR v
D Joned Asri also known as Tri Wahyu CACC345/2012 which is a D
judgment dated 17 April 2013 concerning an applicant who had
E E
pleaded guilty to 10 charges of breach of a deportation order.
The court in that case after considering various matters held
F F
that the total sentence should be that of 33 months’
G imprisonment after a plea of guilty. G
H 17. Defendant, I have taken into account what was said by H
the Chief Judge of the High Court in that case and in adopting
I I
those principles and guidance from the terms of imprisonment
imposed therein, I sentence you to the following terms of
J J
imprisonment.
K K
18. In regard to this offence I should just inform you
L that you are well aware that these offences are very serious L
indeed. An order was made against you. You were informed that
M you could not enter Hong Kong again. Despite knowing this, you M
breached the order and continued to come to Hong Kong on 10
N N
occasions.
O O
19. Defendant, for Charges 1, 2 and 3, I would have taken
P a starting point of 27 months’ imprisonment had I convicted you P
after trial.
Q Q
20. Nine months after you left Hong Kong on the 3rd
R R
charge, you entered Hong Kong again on the 4th charge and stayed
for about 2 months. For those two charges 4 and 5, I would have
S S
taken a starting point of 30 months’ imprisonment.
T T
U U
CRT33/7.10.2013/SY 4 DCCC 793/2013/Sentence
V V
A A
21. Eight months later you entered Hong Kong again, for
charges 6 and 7 I would have taken a starting point of 36
B B
months’ imprisonment.
C C
22. Two years five months later you entered Hong Kong
D again in Charge 8. For Charge 8 and 9, I take a starting point D
of 42 months’ imprisonment. As is stated in Joned Asri, there is
E E
an enhancement in sentence as you have continued to commit the
offences in flagrant defiance of the law.
F F
G 23. Giving you full credit for your plea and reducing G
those sentences by one-third in, Charges 1 to 3, you should be
H sentenced to 18 months’ imprisonment. Charge 4 and 5, 20 months’ H
imprisonment. Charge 6 and 7, 24 months’ imprisonment. Charge 8
I I
and 9, 28 months’ imprisonment.
J J
24. In sentencing you I must consider the principle of
K
totality. For these nine offences, defendant, I consider a total K
term of 30 months to be appropriate. In arriving at 30 months’
L imprisonment, I order Charges 1 to 7 to run concurrent to each L
other, 8 and 9 to run concurrent to each other and to Charges 1
M to 7. 6 months of Charge 8 is to run consecutive to Charges 1 to M
7. That makes a total of 30 months’ imprisonment to which you
N N
are so sentenced.
O O
P P
Q (S. D’Almada Remedios) Q
District Judge
R R
S S
T T
U U
CRT33/7.10.2013/SY 5 DCCC 793/2013/Sentence
V V
A A
DCCC 793/2013
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 793 of 2013
C C
----------------------
D D
HKSAR
E v E
Kaewkert Kwanjai
F also known as Jum-Ai Kwanjai F
G ---------------------- G
Before: HH Judge S D’Almada Remedios
H Date: 7 October 2013 at 3.52 pm H
Present: Mr Alex Wong, PP of the Department of Justice, for
HKSAR
I Mr Chan Siu-pan, of Katherine Y W Or & Co, assigned by I
the Director of Legal Aid, for the defendant
J Offence: (1) to (9) Breach of deportation order (違反遞解離境令) J
K K
---------------------
L L
Reasons for Sentence
M --------------------- M
N 1. Defendant, you have pleaded guilty to nine charges N
before this court of a breach of deportation order, contrary to
O O
section 43(1)(a) of the Immigration Ordinance, Cap 115.
P P
2. On 27 June 2013 police intercepted you at the premises
Q on the 2nd floor of No 173 Hennessy Road, Wan Chai, Hong Kong. Q
Your fingerprints matched those of a person with another name
R called Jum-Ai Kwanjai against whom a deportation order dated 27 R
July 2005 was in force.
S S
3. Under the order you were required to leave Hong Kong
T T
and were prohibited from being in Hong Kong at any time
U thereafter. An immigration officer had served the order onto you U
CRT33/7.10.2013/SY 1 DCCC 793/2013/Sentence
V V
A A
and explained the order to you through an interpreter on 5
August 2005. The day after you were deported from Hong Kong to
B B
Bangkok.
C C
4. Immigration records confirmed that in breach of the
D order and under a different name of Kaewkert Kwanjai, you then D
entered Hong Kong on nine different dates which are the subject
E E
matters of the nine separate charges.
F 5. You entered into Hong Kong under that different name F
in Charge 1 on 2 January 2007, then left Hong Kong on 31 January
G G
and on the same day of your departure entered Hong Kong again on
31 January, the subject matter of Charge 2, left Hong Kong on 28
H H
February and entered Hong Kong on the same date, the subject
I matter of Charge 3. You stayed until 28 March 2007. I
J 6. Nine months from after your departure in March, you J
again entered Hong Kong on 23 December 2007, the subject matter
K K
of Charge 4. You then left Hong Kong on 21 January 2008 and re-
entered Hong Kong the following day, 22 January 2008, the
L L
subject matter of Charge 5. You then stayed until 17 February
M 2008. M
N 7. Eight months after your departure in February, you N
again entered Hong Kong on 27 October 2010 and that was the
O O
subject matter of Charge 6. You stayed here until 26 November
and the following day you re-entered Hong Kong on 27 November
P P
2010 which was the subject matter of Charge 7. You then departed
Q on 26 December 2010 and it was not until 2 years and 5 months Q
later you re-entered Hong Kong on 25 May 2013, the subject
R matter of Charge 8. You then departed from Hong Kong on 21 June, R
but on the same day of your departure you re-entered Hong Kong
S S
which was the subject matter of Charge 9.
T T
8. The period to which these charges apply was over a
U period of approximately 5 years that is from 2 January 2007 to U
CRT33/7.10.2013/SY 2 DCCC 793/2013/Sentence
V V
A A
21 June 2013. Over that time you were in Hong Kong for a total
of 241 days.
B B
C 9. Upon arrest and under caution, you stated that you C
knew you violated your deportation order and you came to Hong
D Kong to work and earn money. Jum-Ai was the surname of your D
father (your maiden name), however you changed the surname to
E E
that of your husband after you were married and applied for a
new passport after the old one had expired.
F F
G 10. Your solicitor, Mr Chan Siu-pan, has mitigated fully G
and thoroughly on your behalf before me today.
H H
11. You have eight previous convictions arising out of two
I I
appearances in court in 2005 and last year. Seven convictions
were for theft in 2005 and on 8 July 2013 you were sentenced to
J J
6 weeks’ imprisonment for the breach of condition of stay.
K
Resulting from that case whereby you overstayed in Hong Kong K
under your new name, the subject charges came to light.
L L
12. I am fully aware of the sentence that you are serving
M when I am considering the sentence to be imposed upon you in M
this case.
N N
13. I am informed by Mr Chan that you are 38 years of age.
O O
You were married in Thailand to a Hong Kong resident who is
P Thai. You were married in 2006. Since then you gave birth to P
two children who are aged 7 and 4. You have another son who is
Q aged 18. Q
R R
14. You had on the first occasion in 2007 entered Hong
Kong with your 9-month-old daughter to visit your husband and
S S
his family. From then on you believed as Hong Kong was your
T second home you came in and out of Hong Kong on your new T
passport with your newly married name.
U U
CRT33/7.10.2013/SY 3 DCCC 793/2013/Sentence
V V
A A
15. I take into account your strongest mitigating factor,
that is, that you have pleaded guilty to these offences.
B B
C 16. Both the prosecuting counsel, Mr Alex Wong, and your C
solicitor have referred me to a Court of Appeal case, HKSAR v
D Joned Asri also known as Tri Wahyu CACC345/2012 which is a D
judgment dated 17 April 2013 concerning an applicant who had
E E
pleaded guilty to 10 charges of breach of a deportation order.
The court in that case after considering various matters held
F F
that the total sentence should be that of 33 months’
G imprisonment after a plea of guilty. G
H 17. Defendant, I have taken into account what was said by H
the Chief Judge of the High Court in that case and in adopting
I I
those principles and guidance from the terms of imprisonment
imposed therein, I sentence you to the following terms of
J J
imprisonment.
K K
18. In regard to this offence I should just inform you
L that you are well aware that these offences are very serious L
indeed. An order was made against you. You were informed that
M you could not enter Hong Kong again. Despite knowing this, you M
breached the order and continued to come to Hong Kong on 10
N N
occasions.
O O
19. Defendant, for Charges 1, 2 and 3, I would have taken
P a starting point of 27 months’ imprisonment had I convicted you P
after trial.
Q Q
20. Nine months after you left Hong Kong on the 3rd
R R
charge, you entered Hong Kong again on the 4th charge and stayed
for about 2 months. For those two charges 4 and 5, I would have
S S
taken a starting point of 30 months’ imprisonment.
T T
U U
CRT33/7.10.2013/SY 4 DCCC 793/2013/Sentence
V V
A A
21. Eight months later you entered Hong Kong again, for
charges 6 and 7 I would have taken a starting point of 36
B B
months’ imprisonment.
C C
22. Two years five months later you entered Hong Kong
D again in Charge 8. For Charge 8 and 9, I take a starting point D
of 42 months’ imprisonment. As is stated in Joned Asri, there is
E E
an enhancement in sentence as you have continued to commit the
offences in flagrant defiance of the law.
F F
G 23. Giving you full credit for your plea and reducing G
those sentences by one-third in, Charges 1 to 3, you should be
H sentenced to 18 months’ imprisonment. Charge 4 and 5, 20 months’ H
imprisonment. Charge 6 and 7, 24 months’ imprisonment. Charge 8
I I
and 9, 28 months’ imprisonment.
J J
24. In sentencing you I must consider the principle of
K
totality. For these nine offences, defendant, I consider a total K
term of 30 months to be appropriate. In arriving at 30 months’
L imprisonment, I order Charges 1 to 7 to run concurrent to each L
other, 8 and 9 to run concurrent to each other and to Charges 1
M to 7. 6 months of Charge 8 is to run consecutive to Charges 1 to M
7. That makes a total of 30 months’ imprisonment to which you
N N
are so sentenced.
O O
P P
Q (S. D’Almada Remedios) Q
District Judge
R R
S S
T T
U U
CRT33/7.10.2013/SY 5 DCCC 793/2013/Sentence
V V