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DCCC 793/2014
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IN THE DISTRICT COURT OF THE
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HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL ACTION NO 793 OF 2014 E
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G HKSAR G
v
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RAHAMAN MUZIBUR also known as
FAZLU RAHAMAN and RAHAMAN FAZLU
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Before: His Honour Judge Alex Lee
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Date: 20 October 2014
L Present: Mr Joe Hui, Public Prosecutor, for HKSAR/Director of L
Public Prosecution
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Mr Fung Sik Yue, of S Y Fung Solicitors, assigned by the
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Director of Legal Aid, for the defendant
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Offences: [1] – [6] Breach of deportation order（違反遞解離境令） O
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Q REASONS FOR SENTENCE Q
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Introduction
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1. The defendant pleads guilty to six charges of breach of
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deportation order, contrary to s 43(1)(a) of the Immigration Ordinance,
E Cap 115. E
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Facts
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2. Shortly stated, the defendant was arrested by the police for
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having acted furtively near Chung King Mansion on 19 February 2014 and
I failing to produce any proof of identity. Subsequently, the defendant I
through the help of a friend produced to the Police an Indian Passport
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bearing the name “Rahaman Muzibur”. Upon further enquiry, however, it
K was found that the defendant had previously assumed another name K
“Rahaman Fazlu” in Hong Kong and was the subject of a deportation order
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executed on 24 September 2012. Despite the defendant’s knowledge of
M the deportation order against him, he persisted in entering and staying in M
Hong Kong by means of the aforesaid Indian passport on six occasions
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between 27 April 2013 and 22 August 2013.
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Antecedent
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Q 3. The defendant is aged 26 years. He has 3 previous Q
convictions here, namely criminal damage (September 2011), possession
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of false instruments and breach of condition of stay (June 2012).
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4. By way of family background, I am told that the defendant’s
C mother, 3 brothers and 4 sisters are living in India and the defendant is the C
youngest among his siblings.
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E Mitigation E
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5. Mr Fung, who mitigates on the defendant’s behalf,
G realistically accepts that the strongest mitigating factor is the defendant’s G
plea of guilty for which a one-third discount will be given.
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I Sentence I
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6. The maximum sentence for the offence of breach of
K deportation order is 7 years’ imprisonment on conviction on indictment. K
Whilst there is no tariff sentence laid down by the Court of Appeal for this
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offence, it has been said that it is a more serious offence that unlawful
M remaining: see HKSAR v Nguyen Chi Trung, HCMA 1095/2001 and M
HKSAR v Cortex Emily Bisoy [2002] 2 HKLRD 762. Generally, for a first
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such offence, the starting point after trial which has been adopted is one of
O 27 months’ imprisonment: see HKSAR v Ta Dinh Son, also known as Bui O
Trong Khoai and Ngo Van Thanh, CACC 348/2013.
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Q 7. In the present case, there is no evidence that the Indian Q
passport was false. On the other hand, the defendant had repeatedly
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violated the immigration law in Hong Kong. Although this is the first time
S that he got caught for breach of the deportation order, he cannot be S
described as a first time offender. In view of HKSAR v Joned Asri, also
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known as Tri Wahyu (CACC 345/2012), it is possible to increase the
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starting point for the subsequent breaches of the deportation order
C committed after the first breach. Furthermore, as the defendant had C
committed a total of 6 separate and distinct offences, subject to the
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principle of totality there should be additional penalty for each of the
E additional offences he committed after the first one. E
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8. For the sake of simplicity, I adopt 27 months’ imprisonment
G as the starting point of each of the charges. I also order that one month G
from each of the sentences on Charges 2 to 6 is to run consecutively to each
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other and to the sentence on Charge 1. Thus, the total sentence of the
I defendant is (18+1+1+1+1+1=) 23 months’ imprisonment. I
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9. The defendant is warned now that should he commit similar
K offences in the future, he would expect a higher starting point for sentence K
than the one adopted in the present case.
L L
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O ( Alex Lee ) O
District Judge
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