DCCC554/2023 HKSAR v. DEWAPURAGE ANURADHA WIMALASIRI aka FERNANDO JENITA KODITUWAKKU JENAT INDRANI and MAHAPATUNAGE NIRMALA PRIYADARSHANI - LawHero
DCCC554/2023
區域法院（刑事）Deputy District Judge W H Ko1/11/2023[2023] HKDC 1563
DCCC554/2023
A A
B B
DCCC 554 of 2023
C [2023] HKDC 1563 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 554 OF 2023
F F
G ———————————— G
HKSAR
H H
v
I DEWAPURAGE ANURADHA WIMALASIRI I
also known as FERNANDO JENITA
J J
KODITUWAKKU JENAT INDRANI and
K MAHAPATUNAGE NIRMALA K
PRIYADARSHANI
L L
————————————
M M
Before: Deputy District Judge W H Ko in Court
N N
Date: 2 November 2023
O Present: Mr Chak Tsz On James, Senior Public Prosecutor, for O
HKSAR/Director of Public Prosecutions
P P
Mr Sarony Neville, Senior Counsel, instructed by
Q Q
Dissanayake & Associates, for the Defendant
R
Offences: [1]-[3], [5]-[6], [8]-[10], [12]-[17] & [19] Breach of R
deportation order（違反遞解離境令）
S S
[4], [7], [11] & [20] Making a false representation to an
T Immigration Officer or Immigration Assistant lawfully acting T
under or in the execution of Part III of the Immigration
U U
V V
-2-
A A
B B
Ordinance（向一名根據或為執行《入境條例》第 III 部而
C 合法行事的入境事務主任或入境事務助理員作出虛假的 C
申述）
D D
[18] Making a false representation for the purpose of
E E
obtaining an entry permit（為取得入境證而作出虛假的申
F 述） F
G G
————————————————
H REASONS FOR SENTENCE H
————————————————
I I
J 1. The Defendant pleaded guilty to 15 charges of a breach of a J
deportation order, contrary to s 43(1)(a) of the Immigration Ordinance,
K K
Cap 115, the particulars of those 15 charges are identical save in except
L L
that they were alleged to be committed on different dates. For charges 1-
M
3, they were committed on 23 March, 14 October and 14 December 2013. M
For charges 5-6, they were committed on 13 November 2014 and 16
N N
November 2015. For charges 8-10, they were committed on 16 June 2016,
O 13 February and 21 August 2017. For charges 12-17, they were committed O
on 26 April, 24 May, 3 July of 2018, 26 June, 28 August and 20 December
P P
of 2019. For charge 19, it was committed on 27 July 2020.
Q Q
2. The Defendant further pleaded guilty to 4 charges of making
R R
a false representation to an Immigration officer or Immigration assistant
S lawfully acting under or in the execution of Part III of the Immigration S
Ordinance, contrary to s 42(1)(a) of the Immigration Ordinance, Cap 115.
T T
The particulars of these 4 charges are that the Defendant on 4 different
U U
V V
-3-
A A
B B
occasions, namely 27 January 2014 (charge 4), 22 January 2016 (charge
C 7), 22 February 2018 (charge 11) and 13 January 2022 (charge 20), made C
a representation to an Immigration officer or Immigration assistant which
D D
she knew to be false or did not believe to be true, namely that she had not
E changed her name before and she had not previously been deported from E
Hong Kong.
F F
G 3. The Defendant also pleaded guilty to a single charge fo G
making a false representation for the purpose of obtaining an entry permit,
H H
contrary to s 42(1)(c) of the Immigration Ordinance, Cap 115. The
I particulars of this charge, charge 18, is that on or about 15 April 2020, I
Defendant made a representation to an Immigration officer or Immigration
J J
assistant which she knew to be false or not believing the same to be true
K for the purpose of obtaining a foreign domestic helper visa under the K
reference of her employer. In the application for the visa, Defendant falsely
L L
declared that she had not changed her name before and had not previously
M been deported from Hong Kong. M
N N
Facts
O O
4. On 23 June 1998 Defendant first entered Hong Kong on the
P P
strength of a foreign domestic helper (“FDH”) visa under the name
Q
MAHAPATUNAGE, Nirmala Priyadarshani (“1st identity”). She applied Q
R
for a HK identity card during which she left her fingerprint and provided a R
photograph. She was served with a deportation order for life on 18 July
S S
2001 under the 1st identity and was subsequently deported back to Sri
T
Lanka. T
U U
V V
-4-
A A
B B
5. In 2003, Defendant, under the name KODITUWAKKU, Jenat
C Indrani (“2nd identity”), entered Hong Kong on the strength of a FDH visa. C
nd
She later applied for a HK identity card using the 2 identity and left her
D D
fingerprint marks. She was deported back to Sri Lanka on 6 February 2012
E under 2nd identity. E
F F
6. Approximately one month later, Defendant applied to work in
G Hong Kong under another name FERNANDO Jenita (“3rd identity”) and G
her application was subsequently approved. She came to Hong Kong again
H H
and applied for a HK identity card under the 3rd identity, with fingerprint
I marks left during the said application. She extended her stay as a FDH on I
2014, 2016 and 2018 and left Hong Kong on 24 February 2020.
J J
K 7. 5 months later, on 27 July 2020, Defendant returned to Hong K
Kong on the strength of a FDH visa under the name DEWAPURAGE,
L L
Anuradha Wimalsiri (“4th identity”). She left her fingerprint marks when
M she applied a HK identity card under her 4th identity. On 17 December M
2021 while staying in Hong Kong Defendant married her employer Mr
N N
Cunningham, who is a HK permanent resident. Her visa application as a
O co-dependent was approved on 9 March 2022. O
P P
th
8. From March 2013 to February 2020 the Defendant had on 14
Q Q
occasions using her 3rd identity entered and departed Hong Kong in
R
contravention of the deportation order imposed upon her (charge 1-3, 5-6, R
8-10 and 12-17). While she entered Hong Kong on 27 July 2020 under her
S S
4th identity she was also in contravention of the order (charge 20). And by
T
applying (i) her extension of stay as a FDH under the 3rd identity on 2014, T
2016, 2018 (charge 4, 7 and 11 respectively); (ii) FDH visa application
U U
V V
-5-
A A
B B
under the 4th identity (charge 18) and (iii) entry for residence as dependants
C in Hong Kong under the 4th identity (charge 20) Defendant had falsely C
declared to the Immigration Department that she had not changed her name
D D
before and she had never been previously subject to a deportation order.
E E
9. Defendant was arrested at her residence on 15 August 2022.
F F
Under caution she admitted that her name was DEWAPURAGE, Anuradha
G Wimalsiri. Fingerprints were lifted from Defendant upon her arrest and G
subsequent comparisons confirmed that the prints matched with those she
H H
left in her previous HK identity card applications.
I I
Mitigation
J J
K 10. Defendant is 53 years old. She had 3 previous court K
appearances with 4 conviction records, two of them, namely making false
L L
representations and breach of deportation order which she was sentenced
M to 12 months’ imprisonment on 4 June 2009 are similar offences to the M
present case.
N N
O 11. Mr Sarony, senior counsel acting for the Defendant has O
provided to the court a very detailed summary of the circumstances leading
P P
to the Defendant’s previous convictions and her subsequent uses of
Q Q
different identities entering Hong Kong which formed the subject matters
R
of the present charges. Defendant first came to Hong Kong to work as a R
domestic helper in 1998. She quitted the job as her employer was abusive
S S
and oppressive, and eventually that led to her overstaying in Hong Kong.
T
She served her sentence and then was deported in 2001. T
U U
V V
-6-
A A
B B
12. With the assistances of another agent, Defendant returned to
C work as a domestic worker under the 2 nd identity until her services were C
terminated in 2009. She remained in Hong Kong and was arrested by the
D D
police as her boyfriend, whom literally financially and mentally cheating
E on her, reported to the Immigration Department that she was overstaying. E
Defendant was then prosecuted. She served her sentence and was
F F
permitted to stay in Hong Kong as she applied for non-refoulement claim.
G During this stay she secured an employment with Mr Cunningham by using G
the 3rd identity.
H H
I 13. This court was told that Defendant had given her care and I
attention to Mr Cunningham’s partner whom was seriously ill at that time.
J J
Her 2 year’s employment contract was extended continuously for a total of
K 8 years. Defendant left Hong Kong and went back to Sri Lanka in 2020, K
having realised that personal attendance of an enquiry with the
L L
Immigration Department was necessary for the extension of her
M employment contract. Mr Cunningham was later able to persuade the M
Defendant to return to Hong Kong, on the condition that she must have
N N
proper documentations.
O O
14. As a result, Defendant entered Hong Kong in May/June 2020
P P
under the 4 identity. She provided nursing care to Mr Cunningham’s
th
Q Q
partner until 2021, when his partner passed away. He is touched by the
R
supports and care that the Defendant had given when he was coping with R
the grief and they decided to get married in December 2021. It came to a
S S
shock to Mr Cunningham when the Defendant was arrested and the matter
T
came into light. T
U U
V V
-7-
A A
B B
15. Senior counsel urged the court and I accept that the Defendant
C breached the deportation orders purely to secure employments and nothing C
else. I also agree with senior counsel’s submission that the primary victim
D D
of the Defendant’s transgression of the law is Mr Cunningham. Despite
E that he continued to support her throughout the entire legal process, even E
realising that Defendant will certainly be deported back to Sri Lanka upon
F F
the completion of her present sentence.
G G
Reasons for sentence
H H
I 16. There are no sentencing guidelines for the offence of breach I
of deportation order. In HKSAR v Ta Dinh Son [2014] HKCA 17 the Court
J J
of Appeal commented that generally for a first offender, the starting point
K of 27 months’ imprisonment after trial is appropriate. K
L L
17. In HKSAR v Joned Asri CACC 345/2012, the Court of Appeal
M noted that in respect of multiple commission of this offence, the enhanced M
starting point ought to have flatten out after the 5th breach or the 5th offence
N N
at a starting point of 42 month’s imprisonment. The defendant in that case
O faced 10 charges of the breach of deportation order and the court ended up O
with a final sentence of 33 months’ imprisonment after taken into account
P P
the one third discount for guilty plea. The Court of Appeal in Joned Asri
Q Q
added that the enhancement must be proportionate to the seriousness of the
R
offence, reserving the maximum penalty for the worst cases of its kind. It R
is however not permissible to keep enhancing for each repeated offence,
S S
which is not the worst of its kind, until one reaches maximum.
T T
U U
V V
-8-
A A
B B
18. I see no reason to depart the sentencing principles as laid
C down in Joned Asri. Adopting the principles of that case and applying the C
one third discount of the Defendant’s early plea, the sentence of charge 1,
D D
2, 3, and 5 are 18 months’ imprisonment, 20 months’ imprisonment, 20
E months’ imprisonment and 24 months’ imprisonment respectively. For E
charge 6, 8-10, 12-17 and 19, the sentence of each charge is 28 months’
F F
imprisonment.
G G
19. Charge 4, 7, 11, 18 and 20 are all concerned with the false
H H
representations made to the Immigration Department when the Defendant
I renewed her contract, obtained an entry permit as a foreign domestic helper I
and applied for entry for residence as dependents. In principle the nature
J J
of these offences are different but they are all part and parcel of the
K Defendant’s multiple breaches of the deportation order. I will take a K
starting point of 24 months’ imprisonment for each of this charge and
L L
reduce to 16 months’ imprisonment upon the Defendant’s guilty plea.
M M
20. I have considered everything that has been advanced by senior
N N
counsel, in particular the Defendant’s background, the reasons of her
O committing the offences and the emotional hardships that Mr Cunningham O
will probably encounter in the days to come. I do not lose sight of the fact
P P
that the offences spanned over a period of 7 years. Taking into account the
Q Q
totality principle I will make an order that the sentence of all charges to be
R
served concurrently. R
S S
T T
U U
V V
-9-
A A
B B
21. Hence for Charge 1-20 the Defendant is sentenced to a total
C term of 28 months’ imprisonment. C
D D
E E
F F
( W H Ko )
G
Deputy District Judge G
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
HKSAR v. DEWAPURAGE ANURADHA WIMALASIRI aka FERNANDO JENITA KODITUWAKKU JENAT INDRANI and MAHAPATUNAGE NIRMALA PRIYADARSHANI
A A
B B
DCCC 554 of 2023
C [2023] HKDC 1563 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 554 OF 2023
F F
G ———————————— G
HKSAR
H H
v
I DEWAPURAGE ANURADHA WIMALASIRI I
also known as FERNANDO JENITA
J J
KODITUWAKKU JENAT INDRANI and
K MAHAPATUNAGE NIRMALA K
PRIYADARSHANI
L L
————————————
M M
Before: Deputy District Judge W H Ko in Court
N N
Date: 2 November 2023
O Present: Mr Chak Tsz On James, Senior Public Prosecutor, for O
HKSAR/Director of Public Prosecutions
P P
Mr Sarony Neville, Senior Counsel, instructed by
Q Q
Dissanayake & Associates, for the Defendant
R
Offences: [1]-[3], [5]-[6], [8]-[10], [12]-[17] & [19] Breach of R
deportation order（違反遞解離境令）
S S
[4], [7], [11] & [20] Making a false representation to an
T Immigration Officer or Immigration Assistant lawfully acting T
under or in the execution of Part III of the Immigration
U U
V V
-2-
A A
B B
Ordinance（向一名根據或為執行《入境條例》第 III 部而
C 合法行事的入境事務主任或入境事務助理員作出虛假的 C
申述）
D D
[18] Making a false representation for the purpose of
E E
obtaining an entry permit（為取得入境證而作出虛假的申
F 述） F
G G
————————————————
H REASONS FOR SENTENCE H
————————————————
I I
J 1. The Defendant pleaded guilty to 15 charges of a breach of a J
deportation order, contrary to s 43(1)(a) of the Immigration Ordinance,
K K
Cap 115, the particulars of those 15 charges are identical save in except
L L
that they were alleged to be committed on different dates. For charges 1-
M
3, they were committed on 23 March, 14 October and 14 December 2013. M
For charges 5-6, they were committed on 13 November 2014 and 16
N N
November 2015. For charges 8-10, they were committed on 16 June 2016,
O 13 February and 21 August 2017. For charges 12-17, they were committed O
on 26 April, 24 May, 3 July of 2018, 26 June, 28 August and 20 December
P P
of 2019. For charge 19, it was committed on 27 July 2020.
Q Q
2. The Defendant further pleaded guilty to 4 charges of making
R R
a false representation to an Immigration officer or Immigration assistant
S lawfully acting under or in the execution of Part III of the Immigration S
Ordinance, contrary to s 42(1)(a) of the Immigration Ordinance, Cap 115.
T T
The particulars of these 4 charges are that the Defendant on 4 different
U U
V V
-3-
A A
B B
occasions, namely 27 January 2014 (charge 4), 22 January 2016 (charge
C 7), 22 February 2018 (charge 11) and 13 January 2022 (charge 20), made C
a representation to an Immigration officer or Immigration assistant which
D D
she knew to be false or did not believe to be true, namely that she had not
E changed her name before and she had not previously been deported from E
Hong Kong.
F F
G 3. The Defendant also pleaded guilty to a single charge fo G
making a false representation for the purpose of obtaining an entry permit,
H H
contrary to s 42(1)(c) of the Immigration Ordinance, Cap 115. The
I particulars of this charge, charge 18, is that on or about 15 April 2020, I
Defendant made a representation to an Immigration officer or Immigration
J J
assistant which she knew to be false or not believing the same to be true
K for the purpose of obtaining a foreign domestic helper visa under the K
reference of her employer. In the application for the visa, Defendant falsely
L L
declared that she had not changed her name before and had not previously
M been deported from Hong Kong. M
N N
Facts
O O
4. On 23 June 1998 Defendant first entered Hong Kong on the
P P
strength of a foreign domestic helper (“FDH”) visa under the name
Q
MAHAPATUNAGE, Nirmala Priyadarshani (“1st identity”). She applied Q
R
for a HK identity card during which she left her fingerprint and provided a R
photograph. She was served with a deportation order for life on 18 July
S S
2001 under the 1st identity and was subsequently deported back to Sri
T
Lanka. T
U U
V V
-4-
A A
B B
5. In 2003, Defendant, under the name KODITUWAKKU, Jenat
C Indrani (“2nd identity”), entered Hong Kong on the strength of a FDH visa. C
nd
She later applied for a HK identity card using the 2 identity and left her
D D
fingerprint marks. She was deported back to Sri Lanka on 6 February 2012
E under 2nd identity. E
F F
6. Approximately one month later, Defendant applied to work in
G Hong Kong under another name FERNANDO Jenita (“3rd identity”) and G
her application was subsequently approved. She came to Hong Kong again
H H
and applied for a HK identity card under the 3rd identity, with fingerprint
I marks left during the said application. She extended her stay as a FDH on I
2014, 2016 and 2018 and left Hong Kong on 24 February 2020.
J J
K 7. 5 months later, on 27 July 2020, Defendant returned to Hong K
Kong on the strength of a FDH visa under the name DEWAPURAGE,
L L
Anuradha Wimalsiri (“4th identity”). She left her fingerprint marks when
M she applied a HK identity card under her 4th identity. On 17 December M
2021 while staying in Hong Kong Defendant married her employer Mr
N N
Cunningham, who is a HK permanent resident. Her visa application as a
O co-dependent was approved on 9 March 2022. O
P P
th
8. From March 2013 to February 2020 the Defendant had on 14
Q Q
occasions using her 3rd identity entered and departed Hong Kong in
R
contravention of the deportation order imposed upon her (charge 1-3, 5-6, R
8-10 and 12-17). While she entered Hong Kong on 27 July 2020 under her
S S
4th identity she was also in contravention of the order (charge 20). And by
T
applying (i) her extension of stay as a FDH under the 3rd identity on 2014, T
2016, 2018 (charge 4, 7 and 11 respectively); (ii) FDH visa application
U U
V V
-5-
A A
B B
under the 4th identity (charge 18) and (iii) entry for residence as dependants
C in Hong Kong under the 4th identity (charge 20) Defendant had falsely C
declared to the Immigration Department that she had not changed her name
D D
before and she had never been previously subject to a deportation order.
E E
9. Defendant was arrested at her residence on 15 August 2022.
F F
Under caution she admitted that her name was DEWAPURAGE, Anuradha
G Wimalsiri. Fingerprints were lifted from Defendant upon her arrest and G
subsequent comparisons confirmed that the prints matched with those she
H H
left in her previous HK identity card applications.
I I
Mitigation
J J
K 10. Defendant is 53 years old. She had 3 previous court K
appearances with 4 conviction records, two of them, namely making false
L L
representations and breach of deportation order which she was sentenced
M to 12 months’ imprisonment on 4 June 2009 are similar offences to the M
present case.
N N
O 11. Mr Sarony, senior counsel acting for the Defendant has O
provided to the court a very detailed summary of the circumstances leading
P P
to the Defendant’s previous convictions and her subsequent uses of
Q Q
different identities entering Hong Kong which formed the subject matters
R
of the present charges. Defendant first came to Hong Kong to work as a R
domestic helper in 1998. She quitted the job as her employer was abusive
S S
and oppressive, and eventually that led to her overstaying in Hong Kong.
T
She served her sentence and then was deported in 2001. T
U U
V V
-6-
A A
B B
12. With the assistances of another agent, Defendant returned to
C work as a domestic worker under the 2 nd identity until her services were C
terminated in 2009. She remained in Hong Kong and was arrested by the
D D
police as her boyfriend, whom literally financially and mentally cheating
E on her, reported to the Immigration Department that she was overstaying. E
Defendant was then prosecuted. She served her sentence and was
F F
permitted to stay in Hong Kong as she applied for non-refoulement claim.
G During this stay she secured an employment with Mr Cunningham by using G
the 3rd identity.
H H
I 13. This court was told that Defendant had given her care and I
attention to Mr Cunningham’s partner whom was seriously ill at that time.
J J
Her 2 year’s employment contract was extended continuously for a total of
K 8 years. Defendant left Hong Kong and went back to Sri Lanka in 2020, K
having realised that personal attendance of an enquiry with the
L L
Immigration Department was necessary for the extension of her
M employment contract. Mr Cunningham was later able to persuade the M
Defendant to return to Hong Kong, on the condition that she must have
N N
proper documentations.
O O
14. As a result, Defendant entered Hong Kong in May/June 2020
P P
under the 4 identity. She provided nursing care to Mr Cunningham’s
th
Q Q
partner until 2021, when his partner passed away. He is touched by the
R
supports and care that the Defendant had given when he was coping with R
the grief and they decided to get married in December 2021. It came to a
S S
shock to Mr Cunningham when the Defendant was arrested and the matter
T
came into light. T
U U
V V
-7-
A A
B B
15. Senior counsel urged the court and I accept that the Defendant
C breached the deportation orders purely to secure employments and nothing C
else. I also agree with senior counsel’s submission that the primary victim
D D
of the Defendant’s transgression of the law is Mr Cunningham. Despite
E that he continued to support her throughout the entire legal process, even E
realising that Defendant will certainly be deported back to Sri Lanka upon
F F
the completion of her present sentence.
G G
Reasons for sentence
H H
I 16. There are no sentencing guidelines for the offence of breach I
of deportation order. In HKSAR v Ta Dinh Son [2014] HKCA 17 the Court
J J
of Appeal commented that generally for a first offender, the starting point
K of 27 months’ imprisonment after trial is appropriate. K
L L
17. In HKSAR v Joned Asri CACC 345/2012, the Court of Appeal
M noted that in respect of multiple commission of this offence, the enhanced M
starting point ought to have flatten out after the 5th breach or the 5th offence
N N
at a starting point of 42 month’s imprisonment. The defendant in that case
O faced 10 charges of the breach of deportation order and the court ended up O
with a final sentence of 33 months’ imprisonment after taken into account
P P
the one third discount for guilty plea. The Court of Appeal in Joned Asri
Q Q
added that the enhancement must be proportionate to the seriousness of the
R
offence, reserving the maximum penalty for the worst cases of its kind. It R
is however not permissible to keep enhancing for each repeated offence,
S S
which is not the worst of its kind, until one reaches maximum.
T T
U U
V V
-8-
A A
B B
18. I see no reason to depart the sentencing principles as laid
C down in Joned Asri. Adopting the principles of that case and applying the C
one third discount of the Defendant’s early plea, the sentence of charge 1,
D D
2, 3, and 5 are 18 months’ imprisonment, 20 months’ imprisonment, 20
E months’ imprisonment and 24 months’ imprisonment respectively. For E
charge 6, 8-10, 12-17 and 19, the sentence of each charge is 28 months’
F F
imprisonment.
G G
19. Charge 4, 7, 11, 18 and 20 are all concerned with the false
H H
representations made to the Immigration Department when the Defendant
I renewed her contract, obtained an entry permit as a foreign domestic helper I
and applied for entry for residence as dependents. In principle the nature
J J
of these offences are different but they are all part and parcel of the
K Defendant’s multiple breaches of the deportation order. I will take a K
starting point of 24 months’ imprisonment for each of this charge and
L L
reduce to 16 months’ imprisonment upon the Defendant’s guilty plea.
M M
20. I have considered everything that has been advanced by senior
N N
counsel, in particular the Defendant’s background, the reasons of her
O committing the offences and the emotional hardships that Mr Cunningham O
will probably encounter in the days to come. I do not lose sight of the fact
P P
that the offences spanned over a period of 7 years. Taking into account the
Q Q
totality principle I will make an order that the sentence of all charges to be
R
served concurrently. R
S S
T T
U U
V V
-9-
A A
B B
21. Hence for Charge 1-20 the Defendant is sentenced to a total
C term of 28 months’ imprisonment. C
D D
E E
F F
( W H Ko )
G
Deputy District Judge G
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