DCCC257/2014

DCCC257/2014

A A B B DCCC 257/2014 C C IN THE DISTRICT COURT OF THE D D HONG KONG SPECIAL ADMINISTRATIVE REGION E CRIMINAL ACTION NO 257 OF 2014 E F F --------------------- G HKSAR G v H H SM KAWSAR AHAMMED also known as JAYNOL HAQUE, HAQUE JAYNOL, I I KAOSAR JAMIR AHMED, MAKSUD SHIKDAR GEME, J KOWSER SHIKDER JIMMY and J AHAMMED KAWSAR S M K K --------------------- L L Before: His Honour Judge Alex Lee M M Date: 8 May 2014 N Present: Mr Karl Chu, Public Prosecutor, for HKSAR/Director of N Public Prosecution O O Mr Chu Hei Chun, Ricky, of SW Wong & Associates, P assigned by the Director of Legal Aid, for the defendant P Offences: [1] Possession of a forged identity card（管有偽造身分證） Q Q [2] Remaining in Hong Kong without the authority of the R Director of Immigration after having landed unlawfully in R Hong Kong（在香港非法入境後未得入境事務處處長授權 S S 而留在香港） T T [3] Breach of deportation order（違反遞解離境令） U U V V  -2- A A B B C -------------------------------------- C REASONS FOR SENTENCE D D -------------------------------------- E E Introduction F F G 1. The defendant pleads guilty to 3 charges, namely possession G of a forged identity card, contrary to s 7A(1) of the Registration of Persons H H Ordinance, Cap 177 (Charge 1); remaining in Hong Kong without the I authority of the Director of Immigration after having landed unlawfully in I Hong Kong, contrary to s 38(1)(b) of the Immigration Ordinance, Cap 115 J J (Charge 2); and breach of deportation order, contrary to s 43(1)(a) of the K Immigration Ordinance (Charge 3). K L L 2. The facts are straight-forward. During a licence check of a M guest house in Shamshuipo, the police found that the defendant was in M possession of a forged identity card, the subject matter of Charge 1. That N N led further to the revelation that the defendant was the subject of a O deportation order issued on 24 August 1995 and that he was last deported O to Bangladesh in May 2007. The defendant admitted to the police that he P P had sneaked into Hong Kong in March 2008 and had unlawfully remained Q here ever since. Q R R S S T T U U V V  -3- A A B B Antecedent and criminal records C C 3. The defendant came from Bangladesh and he received D D education there up to upper secondary level. He is now aged 53. E According to Mr Chu for the defence, the defendant was married in 1984 E but got divorced in 1992. He had two children from his former wife. The F F son, who is now aged 29, is a teacher and the daughter, who is now aged 21, G is a student. The defendant’s mother, who is now aged 97 and said to be in G poor health, is living in Bangladesh with four younger brothers of the H H defendant. I I 4. The defendant had been in court on 3 previous occasions in J J Hong Kong involving a total of 8 convictions, out of which 7 were K immigration offences. The first conviction of all was in June 1995 and the K offence was making/possessing equipment for the making of a false L L instrument for which he was sentenced to 8 months’ imprisonment. The M last batch of convictions were in February 2006 including using forged M travel document, making false representation to immigration officer and N N breach of deportation order for which offences he was sentenced to a total O of 22 months’ imprisonment. He was last discharged from prison in April O 2007. P P Q 5. As aforesaid, the defendant has been the subject of a Q deportation order which, presumably, was issued after his first conviction R R in 1995. Pursuant to that order, he was deported to Dhaka for the first time S on 19 September 1995. However, he came back to Hong Kong in defiance S of that order and was deported again on 5 August 1997. Based on what Mr T T Chu for the defence said in mitigation, the defendant, apparently not U U V V  -4- A A B B deterred at all, soon came back to Hong Kong later that year and was only C re-deported on 4 May 2007. C D D Mitigation E E 6. Mr Chu for the defence put forward the following, which he F F described as “humanitarian grounds”, in mitigation:- G G (i) the present predicament of the defendant would have H H an adverse effect on the health of his mother if she I came to know about it; I J J (ii) the defendant had to divorce his former wife because K she had been unfaithful to him and that left him with a K deep and lasting sense of shame which caused him to L L leave his family and his own country; and M M (iii) in 2002, the defendant met his present partner or wife, N N who is a Filipina working as a domestic helper in Hong O Kong. A daughter was born out of that relationship and O she is now living in the Philippines, being taking care P P of by the wife’s relatives there. The court was provided Q with photographs of this new family of the defendant Q which were said to have been taken in the Philippines. R R The court was also provided with mitigation letters S written by the defendant and his present wife. S T T U U V V  -5- A A B B 7. Lastly, Mr Chu for the defence referred the court to the case C of HKSAR v Pham Van Tuan, HCMA 282/2009, which was a magistracy C appeal in which Deputy High Court Judge Line (as he then was) said that a D D combined imprisonment term of 27 months after plea was amply merited E for two charges of unlawful remaining and breach of deportation order in E relation to a fifth-time repeated offender. F F G Sentencing G H H 8. This is the third time that the defendant was found having I violated the deportation order against him. He was last deported in May I 2007. Yet, in March 2008 he sneaked into Hong Kong again. Before that, J J he had obtained the forged identity card in the mainland in December 2007. K It is clear that the previous punishment on the defendant had simply failed K to deter him from flouting the immigration law of Hong Kong. L L M 9. I am unable to see how the poor health of the defendant’s M mother and his unhappy former marriage could bear on the sentence. From N N the facts which the defendant has admitted, it is apparent that he has not O spent much time with his mother in Bangladesh ever since 1997. It is also O difficult to reconcile the defendant’s said concern for his mother and his P P repeated attempts to come to and stay in Hong Kong in knowing violation Q of the law here. As regards the defendant’s reasons for his divorce and his Q leaving his own country, it took place more than 20 years ago. R R Furthermore, even assuming that it had been a relevant sentencing S consideration before, it certainly cannot be used to reduce the defendant’s S culpability now for breaching the deportation order for the third time. As T T regards his new family, it would make more sense for the family to settle in U U V V  -6- A A B B either the Philippines or Bangladesh. This is because neither the defendant C nor his wife has the right of abode here and their daughter is now living in C the Philippines. I appreciate that it is natural that the defendant would like D D to be with his wife here in Hong Kong. However, the sad reality is that E many husbands of foreign domestic helpers in Hong Kong have to live E apart from their wives. Viewing in that light, the situation of the defendant F F is not so exceptional. Besides, I cannot ignore the fact that the defendant G had already been deported twice from Hong Kong before he formed the G relationship with his present wife in 2002. He knew full well therefore that H H he was an illegal immigrant who would be sent back if discovered and he I should have taken that into consideration before he started that relationship. I In any event, there are clear case authorities to the effect that domestic J J circumstances do not generally amount to considerations of a humanitarian K nature of sufficient weight to justify a departure from the guideline K sentences for illegal immigrants. For example, see HKSAR v Chan Po, L L CACC 290/1999. M M 10. As regards Charge 1, I note that there is no evidence that the N N defendant had used the forged identity card to obtain employment or other O benefit in Hong Kong. On the other hand, there are no exceptional O mitigating factors which justify a departure from the tariff sentence of 12 P P months’ imprisonment after plea as laid down in HKSAR v Li Chang Li Q [2005] 1 HKLRD 864. This is the sentence I pass on this charge. Q R R 11. As regards Charge 2, the tariff sentence laid down in R v So S Man King & Others [1989] 1 HKLR 142 is one of 15 months’ S imprisonment after plea. However, it is also said in that case that the court T T should take into account, by upward adjustment, any previous unlawful U U V V  -7- A A B B entry. Besides, I cannot ignore the long period of unlawful remaining by C the defendant here, which lasted for almost seven years, between March C 2007 (when he sneaked into Hong Kong) and 8 February 2014 (when he D D was arrested). I bear in mind that the maximum sentence for this offence is E one of 3 years’ imprisonment. Taking into account the aggravating factors E present in this case, the sentence on this charge is 18 months’ F F imprisonment. G G 12. As regards Charge 3, whilst there is no tariff sentence as such, H H it has been said that it is a more serious offence that unlawful remaining: I see HKSAR v Nguyen Chi Trung, HCMA 1095/2001 and HKSAR v Cortex I Emily Bisoy [2002] 2 HKLRD 762. Generally, for a first such offence, the J J starting point after trial which has been adopted is one of 27 months’ K imprisonment: see HKSAR v Ta Dinh Son, also known as Bui Trong Khoai K and Ngo Van Thanh, CACC 348/2013. As aforesaid, this is the third time L L that the defendant was found in breach of the deportation order. Having M considered the judgments of the Court of Appeal in HKSAR v Tran Viet M Thanh [2012] 1 HKLRD 903; and HKSAR v Bui Van Khai [2013] 2 N N HKLRD 471, the sentence on this charge after trial is one of 36 months’ O imprisonment which is reduced to 24 months for the plea of guilty. O P P 13. As regards totality, in R v So Man King followed in HKSAR v Q Tran Viet Thanh, it has been said that a concurrent sentence was Q appropriate for a forged identity card offence and unlawfully remaining in R R Hong Kong save in exceptional circumstances. Also, in HKSAR v Bui Van S Khai and HKSAR v Ta Dinh Son, it has been said that the sentences S imposed on unlawful remaining and breach of deportation order should be T T ordered to run concurrently, as the former does not add to the culpability U U V V  -8- A A B B constituted by the latter. In view of the case authorities, I order the C sentences on all charges to run concurrently. Thus, the defendant is C sentenced to a total imprisonment term of 24 months. D D E E F F G ( Alex Lee ) G District Judge H H I I J J K K L L M M N N O O P P Q Q R R S S T T U U V V