A A
DCCC 613/2014
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 613 OF 2014
C C
----------------------
D D
HKSAR
E v E
Uddin Md Mohi
F also known as F
Main Uddin, Uddin Main,
G Abdul Kalam Azad, G
Kalam Azad Abdul,
Chowdhury Babul,
H Babul Chowdhury, H
Chow Dhury Babul,
Babul Chow Dhury,
I Abul Kalam Azad and I
Kalam Azad Abul
J J
----------------------
K Before: Deputy District Judge Mitchell K
Date: 8 December 2014 at 3.52 pm
Present: Mr Ian Polson, Counsel on fiat, for HKSAR
L L
Mr Andrew Allman-Brown, instructed by Cham & Co,
assigned by the Director of Legal Aid, for the
M defendant M
Offence: (1) & (3) & (4) Breach of deportation order (違反遞解離
境令)
N N
(2) Making or causing to be made a false
representation to an Immigration Officer lawfully
O acting under or in the execution of Part III of O
the Immigration Ordinance (向根據或為執行《入境條例》第
III部而合法行事的入境事務主任作出或安排作出虛假的申述)
P P
---------------------
Q Q
Reasons for Sentence
R --------------------- R
S S
1. The defendant has been convicted on his own plea of
three charges of breach of deportation order, contrary to
T T
section 43(1)(a) of the Immigration Ordinance, Cap 115, and one
U U
1
V V
A A
charge of making or causing to be made a false representation to
an Immigration Officer, contrary to section 42(1)(a) of Cap 115.
B B
C 2. The Summary of Facts state that as a result of a joint C
police-Immigration-Department operation on 15 January 2014, the
D defendant was arrested at a shop in Nathan Road, Kowloon for the D
offence of employing a person not lawfully employable and was
E E
subsequently convicted of that offence although I understand
that conviction is the subject of an appeal.
F F
G 3. A background check revealed the defendant had been G
made the subject of a deportation order under different names on
H 2 June 1997 whereby he was prohibited from being in Hong Kong H
for life. The order was served on the defendant on 10 June, and
I I
he was deported on the same day. Notwithstanding and in breach
of that order, the defendant was arrested under a different name
J J
in March 2000 and deported in August 2000, arrested again in
K
May 2001 under yet another name and deported in November 2001, K
and again arrested in March 2003 using another name before being
L deported in January 2004. Within two months of that deportation, L
namely, on 25 March 2004, the defendant returned to Hong Kong
M and entered using yet another name, and this is the subject of M
the 1st charge.
N N
4. After this entry, the defendant obtained successive
O O
renewals of his visa. In 2006, he married a Hong Kong resident
P female under his current identity. In February 2006, the P
defendant applied for a change of his residence status from
Q visitor to dependant. In that application to the Immigration Q
Office or the Immigration Department, the defendant declared he
R R
had not changed his name and had not been deported from
Hong Kong. It is this application with these declarations which
S S
were false which form the substance of the 2nd charge.
T T
U U
2
V V
A A
5. Eventually, after a number of extensions of stay as a
dependant, the defendant submitted an application for a
B B
permanent identity card which was issued on 20 August 2013.
C C
6. On 12 January 2014, the defendant entered Hong Kong
D under his current name or identity before being arrested on D
15 January. Following upon his arrest, the defendant was allowed
E E
bail and made another trip which caused him to re-enter
Hong Kong on 2 February 2014 again in breach of the deportation
F F
order. The entries into Hong Kong on 12 January 2014 and
G 2 February 2014 are the subject of the 3rd and 4th charges. G
H 7. The facts also show that during the period from H
25 March 2004 and 2 February 2014, the defendant left and
I I
re-entered Hong Kong for over 100 occasions. Mr Allman-Brown,
who appears for the defendant, rather candidly says the number
J J
of occasions is nearly 300, and this is according to the travel
K
index check. K
L 8. The defendant has not been charged with these L
intervening entries into Hong Kong, all of which would be or
M would have been in breach of the deportation order. The M
prosecution has thus elected to charge the defendant only with
N N
the entry in March 2004, the entry in January 2014 immediately
preceding his arrest and the entry in February 2014, being the
O O
last entry made by the defendant prior to his remand. It can be
P said therefore the charges do not really reflect the true P
picture or the extent to which the defendant has flagrantly
Q breached the deportation order made against him in 1997. Q
R R
9. Mr Allman-Brown has very helpfully summarised
mitigation in writing. One of the main points he raises concerns
S S
the entry into Hong Kong by the defendant in March 2004 which he
T says is an entry made in the defendant’s true identity as T
reflected by a copy of the birth certificate. I note the birth
U certificate or the copy of the birth certificate shown to the U
3
V V
A A
court was not issued until 2012 and therefore cannot said to be
the actual document used to obtain the passport in 2004.
B B
C 10. At the time of his arrest, there were other passports C
or there were passports found in the defendant’s possession, but
D they were all in the same name of Uddin Md Mohi which reflects D
the name on this birth certificate. I have been informed these
E E
passports all bear different dates in the sense they are
replacement passports such that the defendant was not using two
F F
different passports at the same time.
G G
11. Mr Allman-Brown has drawn my attention to the
H defendant’s work and family background whilst in Hong Kong. He H
has a business in Nathan Road, Kowloon, a daughter at
I I
university, and has been paying his taxes. In all respects, so
Mr Allman-Brown suggests, the defendant is a responsible
J J
citizen.
K K
12. This, however, does not mitigate in any way the fact
L the defendant has flagrantly breached the deportation order and L
as at 25 March had been convicted on three previous occasions
M for a breach of that order. Notwithstanding his deportation in M
January 2004 he chose to again abuse the Hong Kong legal system
N N
and re-entered Hong Kong within a period of two months under yet
another name.
O O
P 13. Whether the name used by the defendant to enter P
Hong Kong on 25 March 2004 is a real name and whether the birth
Q certificate is a genuine certificate, I do not have to make any Q
finding. Suffice it to say that contrary to any suggestion that
R R
the defendant is a model citizen paying his taxes, he was in
Hong Kong illegally, knowing he was in Hong Kong illegally.
S S
Knowing that he was in breach of the deportation order he
T acquired residence status on a falsehood. T
U U
4
V V
A A
14. Mr Allman-Brown has referred me to an authority
regarding sentencing for breach of deportation order. This is
B B
HKSAR v Joned Asri CACC 345 of 2012. In that case, a total of
C 10 repeated entries in breach of a deportation order over a C
period of two years resulted in an overall sentence on appeal
D reduced from the original 59 months imposed by the District D
Court judge to 33 months.
E E
15. I note in that case, however, the defendant was of
F F
previous clear record prior to committing the first offence, and
G the incremental starting points, although adjusted on appeal, G
were deemed appropriate with a finite level to reflect the
H degree of overall criminality of the offence such that the first H
starting point adopted was 27 months reaching or to an increase
I I
to starting point of 42 months to cover all 10 charges.
J J
16. I have listened carefully to all that has been
K
advanced in mitigation. As I say, the defendant showed a K
flagrant defiance of the law of Hong Kong in 2004 when he
L re-entered, having been deported only in January of that year. L
The fact that he has been in Hong Kong since then, paying taxes,
M bringing up a family and running a business does not detract M
from the degree of criminality. He has used and abused his
N N
falsely acquired status, knowing full well the consequences of
entering Hong Kong in breach of a deportation order.
O O
P 17. In all the circumstances, I consider an appropriate P
starting point for the 1st charge to be one of 30 months’
Q imprisonment. For the 2nd charge, I consider an appropriate Q
starting point to be 36 months’ imprisonment. For the
R R
3rd charge, I would have adopted a similar starting point of
36 months. However, this was an offence committed whilst on
S S
bail, and committing an offence whilst on bail is an aggravating
T feature. He had only been arrested on 15 January 2014 and went T
on to commit the fourth offence just over two weeks thereafter
U in early February. In all the circumstances, I consider a U
5
V V
A A
starting point of 42 months to be appropriate for the
4th charge.
B B
C (Discussion re starting points for charges) C
18. I will deal with the 2nd charge in a moment. For each
D of these charges, the defendant will be allowed the usual D
one-third discount to reflect his pleas so that in respect of
E E
the 1st charge, the defendant is sentenced to 20 months, the
3rd charge to 24 months, and the 4th charge to 28 months.
F F
G 19. The 2nd charge and this is the charge relating to the G
making of a false declaration to the immigration officer. In the
H declaration made by the defendant, he told flagrant lies to the H
immigration officer no doubt to cover up his status as a person
I I
in Hong Kong in breach of the deportation order. Whilst the
maximum sentence for this offence under the ordinance is higher
J J
than the other offence, the sentences imposed by the courts for
K
this offence of making a false declaration tend to be lower. K
Furthermore, a distinction is made where the offence
L incorporates the use of a forged travel document. L
M 20. The prosecution in the present case has not been able M
to prove the passport used by the defendant to enter Hong Kong
N N
in 2004 which was no doubt the reference document in connection
with the declaration made in 2006, the subject of the
O O
2nd charge, is a false travel document. However, this is a
P serious offence and was part of the progression towards the P
defendant obtaining a permanent Hong Kong identity card.
Q Q
21. In all the circumstances, I shall adopt a starting
R R
point of 12 months which I reduce to 8 months to reflect his
plea of guilty.
S S
T 22. I shall now turn to the question of T
consecutive/concurrent sentences and the overall totality. In
U respect of Charges 1, 3 and 4 - they are the charges relating to U
6
V V
A A
the breach of deportation order - I had in mind an overall
sentence of 36 months. This can be arrived at by making 4 months
B B
in respect of the 1st charge consecutive to the 4th charge and
C the remaining 16 months concurrent; in respect of the C
3rd charge, 4 months consecutive to the 4th charge with the
D remaining concurrent; the periods of 4 months in respect of the D
1st charge and 2nd charge be consecutive to each other, making
E E
an additional 8 months to be added to the 28 months imposed in
respect of the 4th charge. This achieves the overall total of
F F
36 months in respect of Charges 1, 3 and 4.
G G
23. In respect of the 2nd charge, this was a wholly
H different charge but part and parcel of the defendant’s H
machinations to remain in Hong Kong in breach of his deportation
I I
order. It was, nevertheless, an attempt to regularise what was
an illegal status and again a flagrant breach of the Hong Kong
J J
law and Hong Kong immigration system.
K K
24. To reflect the overall totality of the sentence which
L the defendant should serve in respect of all these four L
offences, I will order that 3 months of the 8 months imposed to
M run consecutive to the sentences I have imposed in respect of M
Charges 1, 3 and 4, and 5 months concurrent which makes a total
N N
sentence the defendant has to serve in respect of all four
charges of 3 years and 3 months’ imprisonment.
O O
P 25. I would add in passing sentence that I found it P
strange, given that a person is required to provide a
Q fingerprint at the time he applies for a Hong Kong identity Q
card, that the defendant’s status as a person in breach of a
R R
deportation order was not picked up prior to his arrest in
January 2014. Failure to cross-check the fingerprint has allowed
S S
the defendant to remain in Hong Kong for 10 years and indeed to
T obtain a Hong Kong permanent ID card. I trust that that T
Hong Kong permanent ID card has now been revoked...
U U
7
V V
A A
(Discussion re the Hong Kong ID card)and further that the
position of his marriage to the Hong Kong resident is now being
B B
looked at, bearing in mind he had no lawful right to remain in
C Hong Kong at the time he entered into that marriage irrespective C
of whether the identity under which he entered that marriage was
D true or otherwise. D
E E
(Judge asked to repeat the last sentence)
F F
26. As I said at the earlier hearing, it begs the question
G as to why the Hong Kong Immigration Department bothers to take G
the fingerprints of persons applying for an identity card.
H H
I I
J J
(Neil Mitchell)
Deputy District Judge
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
8
V V
A A
DCCC 613/2014
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 613 OF 2014
C C
----------------------
D D
HKSAR
E v E
Uddin Md Mohi
F also known as F
Main Uddin, Uddin Main,
G Abdul Kalam Azad, G
Kalam Azad Abdul,
Chowdhury Babul,
H Babul Chowdhury, H
Chow Dhury Babul,
Babul Chow Dhury,
I Abul Kalam Azad and I
Kalam Azad Abul
J J
----------------------
K Before: Deputy District Judge Mitchell K
Date: 8 December 2014 at 3.52 pm
Present: Mr Ian Polson, Counsel on fiat, for HKSAR
L L
Mr Andrew Allman-Brown, instructed by Cham & Co,
assigned by the Director of Legal Aid, for the
M defendant M
Offence: (1) & (3) & (4) Breach of deportation order (違反遞解離
境令)
N N
(2) Making or causing to be made a false
representation to an Immigration Officer lawfully
O acting under or in the execution of Part III of O
the Immigration Ordinance (向根據或為執行《入境條例》第
III部而合法行事的入境事務主任作出或安排作出虛假的申述)
P P
---------------------
Q Q
Reasons for Sentence
R --------------------- R
S S
1. The defendant has been convicted on his own plea of
three charges of breach of deportation order, contrary to
T T
section 43(1)(a) of the Immigration Ordinance, Cap 115, and one
U U
1
V V
A A
charge of making or causing to be made a false representation to
an Immigration Officer, contrary to section 42(1)(a) of Cap 115.
B B
C 2. The Summary of Facts state that as a result of a joint C
police-Immigration-Department operation on 15 January 2014, the
D defendant was arrested at a shop in Nathan Road, Kowloon for the D
offence of employing a person not lawfully employable and was
E E
subsequently convicted of that offence although I understand
that conviction is the subject of an appeal.
F F
G 3. A background check revealed the defendant had been G
made the subject of a deportation order under different names on
H 2 June 1997 whereby he was prohibited from being in Hong Kong H
for life. The order was served on the defendant on 10 June, and
I I
he was deported on the same day. Notwithstanding and in breach
of that order, the defendant was arrested under a different name
J J
in March 2000 and deported in August 2000, arrested again in
K
May 2001 under yet another name and deported in November 2001, K
and again arrested in March 2003 using another name before being
L deported in January 2004. Within two months of that deportation, L
namely, on 25 March 2004, the defendant returned to Hong Kong
M and entered using yet another name, and this is the subject of M
the 1st charge.
N N
4. After this entry, the defendant obtained successive
O O
renewals of his visa. In 2006, he married a Hong Kong resident
P female under his current identity. In February 2006, the P
defendant applied for a change of his residence status from
Q visitor to dependant. In that application to the Immigration Q
Office or the Immigration Department, the defendant declared he
R R
had not changed his name and had not been deported from
Hong Kong. It is this application with these declarations which
S S
were false which form the substance of the 2nd charge.
T T
U U
2
V V
A A
5. Eventually, after a number of extensions of stay as a
dependant, the defendant submitted an application for a
B B
permanent identity card which was issued on 20 August 2013.
C C
6. On 12 January 2014, the defendant entered Hong Kong
D under his current name or identity before being arrested on D
15 January. Following upon his arrest, the defendant was allowed
E E
bail and made another trip which caused him to re-enter
Hong Kong on 2 February 2014 again in breach of the deportation
F F
order. The entries into Hong Kong on 12 January 2014 and
G 2 February 2014 are the subject of the 3rd and 4th charges. G
H 7. The facts also show that during the period from H
25 March 2004 and 2 February 2014, the defendant left and
I I
re-entered Hong Kong for over 100 occasions. Mr Allman-Brown,
who appears for the defendant, rather candidly says the number
J J
of occasions is nearly 300, and this is according to the travel
K
index check. K
L 8. The defendant has not been charged with these L
intervening entries into Hong Kong, all of which would be or
M would have been in breach of the deportation order. The M
prosecution has thus elected to charge the defendant only with
N N
the entry in March 2004, the entry in January 2014 immediately
preceding his arrest and the entry in February 2014, being the
O O
last entry made by the defendant prior to his remand. It can be
P said therefore the charges do not really reflect the true P
picture or the extent to which the defendant has flagrantly
Q breached the deportation order made against him in 1997. Q
R R
9. Mr Allman-Brown has very helpfully summarised
mitigation in writing. One of the main points he raises concerns
S S
the entry into Hong Kong by the defendant in March 2004 which he
T says is an entry made in the defendant’s true identity as T
reflected by a copy of the birth certificate. I note the birth
U certificate or the copy of the birth certificate shown to the U
3
V V
A A
court was not issued until 2012 and therefore cannot said to be
the actual document used to obtain the passport in 2004.
B B
C 10. At the time of his arrest, there were other passports C
or there were passports found in the defendant’s possession, but
D they were all in the same name of Uddin Md Mohi which reflects D
the name on this birth certificate. I have been informed these
E E
passports all bear different dates in the sense they are
replacement passports such that the defendant was not using two
F F
different passports at the same time.
G G
11. Mr Allman-Brown has drawn my attention to the
H defendant’s work and family background whilst in Hong Kong. He H
has a business in Nathan Road, Kowloon, a daughter at
I I
university, and has been paying his taxes. In all respects, so
Mr Allman-Brown suggests, the defendant is a responsible
J J
citizen.
K K
12. This, however, does not mitigate in any way the fact
L the defendant has flagrantly breached the deportation order and L
as at 25 March had been convicted on three previous occasions
M for a breach of that order. Notwithstanding his deportation in M
January 2004 he chose to again abuse the Hong Kong legal system
N N
and re-entered Hong Kong within a period of two months under yet
another name.
O O
P 13. Whether the name used by the defendant to enter P
Hong Kong on 25 March 2004 is a real name and whether the birth
Q certificate is a genuine certificate, I do not have to make any Q
finding. Suffice it to say that contrary to any suggestion that
R R
the defendant is a model citizen paying his taxes, he was in
Hong Kong illegally, knowing he was in Hong Kong illegally.
S S
Knowing that he was in breach of the deportation order he
T acquired residence status on a falsehood. T
U U
4
V V
A A
14. Mr Allman-Brown has referred me to an authority
regarding sentencing for breach of deportation order. This is
B B
HKSAR v Joned Asri CACC 345 of 2012. In that case, a total of
C 10 repeated entries in breach of a deportation order over a C
period of two years resulted in an overall sentence on appeal
D reduced from the original 59 months imposed by the District D
Court judge to 33 months.
E E
15. I note in that case, however, the defendant was of
F F
previous clear record prior to committing the first offence, and
G the incremental starting points, although adjusted on appeal, G
were deemed appropriate with a finite level to reflect the
H degree of overall criminality of the offence such that the first H
starting point adopted was 27 months reaching or to an increase
I I
to starting point of 42 months to cover all 10 charges.
J J
16. I have listened carefully to all that has been
K
advanced in mitigation. As I say, the defendant showed a K
flagrant defiance of the law of Hong Kong in 2004 when he
L re-entered, having been deported only in January of that year. L
The fact that he has been in Hong Kong since then, paying taxes,
M bringing up a family and running a business does not detract M
from the degree of criminality. He has used and abused his
N N
falsely acquired status, knowing full well the consequences of
entering Hong Kong in breach of a deportation order.
O O
P 17. In all the circumstances, I consider an appropriate P
starting point for the 1st charge to be one of 30 months’
Q imprisonment. For the 2nd charge, I consider an appropriate Q
starting point to be 36 months’ imprisonment. For the
R R
3rd charge, I would have adopted a similar starting point of
36 months. However, this was an offence committed whilst on
S S
bail, and committing an offence whilst on bail is an aggravating
T feature. He had only been arrested on 15 January 2014 and went T
on to commit the fourth offence just over two weeks thereafter
U in early February. In all the circumstances, I consider a U
5
V V
A A
starting point of 42 months to be appropriate for the
4th charge.
B B
C (Discussion re starting points for charges) C
18. I will deal with the 2nd charge in a moment. For each
D of these charges, the defendant will be allowed the usual D
one-third discount to reflect his pleas so that in respect of
E E
the 1st charge, the defendant is sentenced to 20 months, the
3rd charge to 24 months, and the 4th charge to 28 months.
F F
G 19. The 2nd charge and this is the charge relating to the G
making of a false declaration to the immigration officer. In the
H declaration made by the defendant, he told flagrant lies to the H
immigration officer no doubt to cover up his status as a person
I I
in Hong Kong in breach of the deportation order. Whilst the
maximum sentence for this offence under the ordinance is higher
J J
than the other offence, the sentences imposed by the courts for
K
this offence of making a false declaration tend to be lower. K
Furthermore, a distinction is made where the offence
L incorporates the use of a forged travel document. L
M 20. The prosecution in the present case has not been able M
to prove the passport used by the defendant to enter Hong Kong
N N
in 2004 which was no doubt the reference document in connection
with the declaration made in 2006, the subject of the
O O
2nd charge, is a false travel document. However, this is a
P serious offence and was part of the progression towards the P
defendant obtaining a permanent Hong Kong identity card.
Q Q
21. In all the circumstances, I shall adopt a starting
R R
point of 12 months which I reduce to 8 months to reflect his
plea of guilty.
S S
T 22. I shall now turn to the question of T
consecutive/concurrent sentences and the overall totality. In
U respect of Charges 1, 3 and 4 - they are the charges relating to U
6
V V
A A
the breach of deportation order - I had in mind an overall
sentence of 36 months. This can be arrived at by making 4 months
B B
in respect of the 1st charge consecutive to the 4th charge and
C the remaining 16 months concurrent; in respect of the C
3rd charge, 4 months consecutive to the 4th charge with the
D remaining concurrent; the periods of 4 months in respect of the D
1st charge and 2nd charge be consecutive to each other, making
E E
an additional 8 months to be added to the 28 months imposed in
respect of the 4th charge. This achieves the overall total of
F F
36 months in respect of Charges 1, 3 and 4.
G G
23. In respect of the 2nd charge, this was a wholly
H different charge but part and parcel of the defendant’s H
machinations to remain in Hong Kong in breach of his deportation
I I
order. It was, nevertheless, an attempt to regularise what was
an illegal status and again a flagrant breach of the Hong Kong
J J
law and Hong Kong immigration system.
K K
24. To reflect the overall totality of the sentence which
L the defendant should serve in respect of all these four L
offences, I will order that 3 months of the 8 months imposed to
M run consecutive to the sentences I have imposed in respect of M
Charges 1, 3 and 4, and 5 months concurrent which makes a total
N N
sentence the defendant has to serve in respect of all four
charges of 3 years and 3 months’ imprisonment.
O O
P 25. I would add in passing sentence that I found it P
strange, given that a person is required to provide a
Q fingerprint at the time he applies for a Hong Kong identity Q
card, that the defendant’s status as a person in breach of a
R R
deportation order was not picked up prior to his arrest in
January 2014. Failure to cross-check the fingerprint has allowed
S S
the defendant to remain in Hong Kong for 10 years and indeed to
T obtain a Hong Kong permanent ID card. I trust that that T
Hong Kong permanent ID card has now been revoked...
U U
7
V V
A A
(Discussion re the Hong Kong ID card)and further that the
position of his marriage to the Hong Kong resident is now being
B B
looked at, bearing in mind he had no lawful right to remain in
C Hong Kong at the time he entered into that marriage irrespective C
of whether the identity under which he entered that marriage was
D true or otherwise. D
E E
(Judge asked to repeat the last sentence)
F F
26. As I said at the earlier hearing, it begs the question
G as to why the Hong Kong Immigration Department bothers to take G
the fingerprints of persons applying for an identity card.
H H
I I
J J
(Neil Mitchell)
Deputy District Judge
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
8
V V