DCCC265/2020 HKSAR v. KHAN KHANWAZV (also known as AFSAR Sher and SHER Afsar) - LawHero
DCCC265/2020
HKSAR v. KHAN KHANWAZV (also known as AFSAR Sher and SHER Afsar)
區域法院（刑事）Deputy District Judge Colin Wong1/7/2020[2020] HKDC 499
DCCC265/2020
A A
B B
DCCC 265/2020
C [2020] HKDC 499 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 265 OF 2020
F F
G ----------------------------- G
HKSAR
H H
v
I KHAN Khanwaz I
(also known as AFSAR Sher and SHER Afsar)
J J
-----------------------------
K K
Before: Deputy District Judge Colin Wong
L L
Date: 2 July 2020
M Present: Mr POON Siu Bunn, Counsel on fiat, for HKSAR M
Mr SLUTSKY Holden N., instructed by Messrs. Chaudhry
N N
Solicitors, assigned by the Director of Legal Aid for the
O defendant. O
Offence: [1]-[15] Breach of deportation order (違反遞解離境令)
P P
Q Q
R
-------------------------------------- R
REASONS FOR SENTENCE
S S
--------------------------------------
T T
U U
V V
- 2 -
A A
B B
1. The defendant pleaded guilty to 15 charges of breach of
C deportation order, contrary to section 43(1)(a) of the Immigration C
1
Ordinance .
D D
E Admitted Facts E
F F
2. Upon processing the entry dependent visa of the defendant’s
G son, the application was referred for further investigation. G
H H
3. Fingerprint check confirmed that the defendant, under the
I identity of SHER AFSAR with date of birth as 1939 (“ID1”), was I
subjected to a Deportation Order issued on 16 April 2003 (“the
J J
Deportation Order”), which prohibited the defendant from being in Hong
K Kong for life. On 22 May 2003, the Deportation Order was served to the K
defendant with the assistance of an interpreter. On 21 July 2003, the
L L
defendant was deported to Pakistan.
M M
4. In 2008, the defendant, under the identity of KHAN,
N N
KHANWAZ with the date of birth of 3 March 1955 (“ID2”), was granted
O an entry dependent visa under the sponsorship of his wife. O
P P
5. The defendant then assumed ID2 in all immigration dealings
Q in Hong Kong. On 24 March 2015, the defendant obtained right of abode Q
in Hong Kong under ID2.
R R
S S
6. There were a number of arrival and departure records
T concerned the defendant in ID2 (Re: Charges 1 – 15):- T
1
U Cap 115 U
V V
- 3 -
A A
B B
i) 2 January 2010;
C ii) 25 July 2010; C
iii) 6 September 2011;
D D
iv) 29 April 2012;
E v) 18 September 2012; E
vi) 21 August 2013;
F F
vii) 17 May 2014;
G viii) 21 December 2014; G
ix) 15 March 2015;
H H
x) 13 May 2015;
I xi) 7 November 2015; I
xii) 31 January 2016;
J J
xiii) 23 February 2016;
K xiv) 27 March 2016; and K
xv) 28 July 2016.
L L
M Previous Criminal Convictions M
N N
7. The defendant has 1 criminal record on 20 November 2002
O with 2 criminal convictions, namely:- O
i) Breach of Condition of Stay (1 month’s
P P
imprisonment); and
Q ii) Using an Identity Card relation to another person Q
(12 months’ imprisonment to run concurrently to the offence
R R
of Breach of Condition of Stay).
S S
Mitigation
T T
U U
V V
- 4 -
A A
B B
8. The defendant is aged 65 years old. He is originally from
C Pakistan. He has good health. He received primary school education in C
Pakistan. He previously worked as a part-time driver in Pakistan, earning
D D
the equivalent of around HK$1,500.00 per month.
E E
9. The defendant and his first wife had 6 children, together 5
F F
sons and 1 daughter. His first wife passed away in 2006 in Pakistan. His
G children are all in Pakistan and are now aged between 16 and 37 years old. G
H H
10. The defendant got married to his current wife in Pakistan after
I the death of his first wife. His current wife is aged 50. They have no I
children together.
J J
K 11. The defendant’s current wife is a Hong Kong Permanent K
Resident. After they married in Pakistan, she was in a position to sponsor
L L
him as a dependent to come to live in Hong Kong together with her, but
M given that he was subject to the Deportation Order and did not want to M
disclose his past as he believed he would be able to obtain the visa to come
N N
to Hong Kong, he identified himself as Khan, Khanwaz.
O O
12. With regards to the 15 charges, the defendant states that he
P P
had gone on a number of occasions to Pakistan by himself, to visit family,
Q to Mainland China, for meals with friends and to Saudi Arabia, to go to Q
pilgrimage together with his wife. He committed the offence out of love
R R
and care for his wife, who is a heart patient. He wanted to take care of her.
S S
13. The defence submitted an apology letter by the defendant and
T T
a letter from the Chief Patron Mr. Khan Jahan Zeeb of the Hong Kong
U U
V V
- 5 -
A A
B B
Youth Betterment Association. I have read and considered both before
C sentencing. C
D D
Sentence
E E
14. There are a total of 15 charges of breach of deportation order.
F F
G 15. In determining the appropriate starting point for sentence, I G
have considered HKSAR v Joned Asri 2 , HKSAR v Mohammad
H H
Qamaaluddin Ahmed and Others3, HKSAR v Ta Dinh Son4 and HKSAR
I Pulido Rannie Laig5. I
J J
16. In HKSAR v Joned Asri, the defendant pleaded guilty to 10
K charges of breach of deportation order and the sentencing judge sentenced K
him to a total of 59 months’ imprisonment. The Hon CJHC giving the
L L
judgment of the Court held that:
M M
“The ultimate sentence, after enhancement must be
proportionate to the seriousness of the offence, reserving the
N maximum penalty for worst cases of its kind. What is not N
permissible, in the case of a repeat or even persistent offender, is
O to keep enhancing the starting point for each repeat offence, O
which is not worst of its kind, until one reaches the
P maximum …… The enhanced starting point must plateau at P
some time.
Q Q
…… the enhanced starting points ought to have flattened out
after the fifth breach, that is, 42 months’ imprisonment ……
R R
the starting points for the 5th to 14th charges should be 27, 30, 30,
S 36, 42, 42, 42, 42, 42 and 42 months’ respectively S
2
T CACC 345/2012 T
3
DCCC 531/2012
4
[2014] HKLRD (Yrbk) 310
5
U DCCC 450/2016 U
V V
- 6 -
A A
B B
Given the applicant the full one-third discount, the individual
C sentences for the ten breaches should be 18, 20, 20, 24, 28, 28, C
28, 28, 28 and 28 months.
D D
…...Having borne in mind the totality principle and the various
E matters urged by counsel…… the total sentence for the ten E
charges should be 33 months.”
F F
G 17. In HKSAR v Mohammad Qamaaluddin, the defendant G
pleaded guilty to a total of 18 counts of “breach of deportation order”. He
H H
was sentenced to 24 months for each count, to run concurrently in all 18
I charges. However, I noted that Mohammad Qamaaluddin was decided I
before Joned Asri.
J J
K 18. In HKSAR v Pulido Rannie Laig, the defendant pleaded guilty K
to a total of 15 counts of “breach of deportation order”. The defendant
L L
received a 28 months’ sentence for each count, and the sentences were to
M be served wholly concurrently. The court adopted a global approach to M
simplify the sentencing process.
N N
O 19. In the present case, the defendant has breached the O
deportation order 15 times. Repeat offending is a signification aggravating
P P
feature justifying enhancement of the starting point of 27 months’
Q Q
imprisonment.
R R
20. In HKSAR v Joned Asri the Court of Appeal held that 27
S S
months, 30 months, 36 months and 42 months were appropriate for the first
T to fifth breaches, and the enhanced starting points were flattened out after T
the fifth breach.
U U
V V
- 7 -
A A
B B
C 21. In the present case, I adopt the following starting points and C
give a one-third discount of sentence for the guilty pleas he entered.
D D
Charges Starting Point Sentence after 1/3
E discount E
1st Charge 27 months 18 months
F F
2nd Charge 30 months 20 months
G 3rd Charge 33 months 22 months G
4th Charge 36 months 24 months
H H
5th Charge 42 months 28 months
I 6th Charge 42 months 28 months I
7th Charge 42 months 28 months
J J
th
8 Charge 42 months 28 months
K K
9th Charge 42 months 28 months
L
10th Charge 42 months 28 months L
th
11 Charge 42 months 28 months
M M
12th Charge 42 months 28 months
N 13th Charge 42 months 28 months N
14th Charge 42 months 28 months
O O
15th Charge 42 months 28 months
P P
22. The mitigation advanced related mainly to his personal
Q Q
background. I see no valid mitigating factor that justifies any further
R reduction in sentence. I therefore sentenced the defendant to the reduced R
terms of imprisonment as set out in the paragraph above.
S S
T T
U U
V V
- 8 -
A A
B B
Totality
C C
23. All the offences are separate and distinct. Defence urged the
D D
court to adopt the approach of Mohammad Qamaaluddin and Pulido
E Rannie Laig, to order all sentences be run concurrently. However, the E
offences in those cases were committed within a period of 2 years. In the
F F
present case, the offences spread out over 6 years. I also bear in mind the
G totality principle, I make the following orders:- G
H H
i) 1st to 8th charges should run concurrently,
I making a total of 28 months; I
ii) 9th to 15th charges should run concurrently (a
J J
total of 28 months) but 3 months should run consecutively to
K the total sentence for 1st to 8th charges, making a total of 31 K
months for all the charges.
L L
iii) I consider the ultimate sentence of 31 months’,
M or 2 years 7 months’ imprisonment to be sufficiently reflect M
the defendant’s overall criminality and culpability in these 15
N N
charges.
O O
P P
Q Q
R R
S ( Colin Wong ) S
Deputy District Judge
T T
U U
V V
A A
B B
DCCC 265/2020
C [2020] HKDC 499 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 265 OF 2020
F F
G ----------------------------- G
HKSAR
H H
v
I KHAN Khanwaz I
(also known as AFSAR Sher and SHER Afsar)
J J
-----------------------------
K K
Before: Deputy District Judge Colin Wong
L L
Date: 2 July 2020
M Present: Mr POON Siu Bunn, Counsel on fiat, for HKSAR M
Mr SLUTSKY Holden N., instructed by Messrs. Chaudhry
N N
Solicitors, assigned by the Director of Legal Aid for the
O defendant. O
Offence: [1]-[15] Breach of deportation order (違反遞解離境令)
P P
Q Q
R
-------------------------------------- R
REASONS FOR SENTENCE
S S
--------------------------------------
T T
U U
V V
- 2 -
A A
B B
1. The defendant pleaded guilty to 15 charges of breach of
C deportation order, contrary to section 43(1)(a) of the Immigration C
1
Ordinance .
D D
E Admitted Facts E
F F
2. Upon processing the entry dependent visa of the defendant’s
G son, the application was referred for further investigation. G
H H
3. Fingerprint check confirmed that the defendant, under the
I identity of SHER AFSAR with date of birth as 1939 (“ID1”), was I
subjected to a Deportation Order issued on 16 April 2003 (“the
J J
Deportation Order”), which prohibited the defendant from being in Hong
K Kong for life. On 22 May 2003, the Deportation Order was served to the K
defendant with the assistance of an interpreter. On 21 July 2003, the
L L
defendant was deported to Pakistan.
M M
4. In 2008, the defendant, under the identity of KHAN,
N N
KHANWAZ with the date of birth of 3 March 1955 (“ID2”), was granted
O an entry dependent visa under the sponsorship of his wife. O
P P
5. The defendant then assumed ID2 in all immigration dealings
Q in Hong Kong. On 24 March 2015, the defendant obtained right of abode Q
in Hong Kong under ID2.
R R
S S
6. There were a number of arrival and departure records
T concerned the defendant in ID2 (Re: Charges 1 – 15):- T
1
U Cap 115 U
V V
- 3 -
A A
B B
i) 2 January 2010;
C ii) 25 July 2010; C
iii) 6 September 2011;
D D
iv) 29 April 2012;
E v) 18 September 2012; E
vi) 21 August 2013;
F F
vii) 17 May 2014;
G viii) 21 December 2014; G
ix) 15 March 2015;
H H
x) 13 May 2015;
I xi) 7 November 2015; I
xii) 31 January 2016;
J J
xiii) 23 February 2016;
K xiv) 27 March 2016; and K
xv) 28 July 2016.
L L
M Previous Criminal Convictions M
N N
7. The defendant has 1 criminal record on 20 November 2002
O with 2 criminal convictions, namely:- O
i) Breach of Condition of Stay (1 month’s
P P
imprisonment); and
Q ii) Using an Identity Card relation to another person Q
(12 months’ imprisonment to run concurrently to the offence
R R
of Breach of Condition of Stay).
S S
Mitigation
T T
U U
V V
- 4 -
A A
B B
8. The defendant is aged 65 years old. He is originally from
C Pakistan. He has good health. He received primary school education in C
Pakistan. He previously worked as a part-time driver in Pakistan, earning
D D
the equivalent of around HK$1,500.00 per month.
E E
9. The defendant and his first wife had 6 children, together 5
F F
sons and 1 daughter. His first wife passed away in 2006 in Pakistan. His
G children are all in Pakistan and are now aged between 16 and 37 years old. G
H H
10. The defendant got married to his current wife in Pakistan after
I the death of his first wife. His current wife is aged 50. They have no I
children together.
J J
K 11. The defendant’s current wife is a Hong Kong Permanent K
Resident. After they married in Pakistan, she was in a position to sponsor
L L
him as a dependent to come to live in Hong Kong together with her, but
M given that he was subject to the Deportation Order and did not want to M
disclose his past as he believed he would be able to obtain the visa to come
N N
to Hong Kong, he identified himself as Khan, Khanwaz.
O O
12. With regards to the 15 charges, the defendant states that he
P P
had gone on a number of occasions to Pakistan by himself, to visit family,
Q to Mainland China, for meals with friends and to Saudi Arabia, to go to Q
pilgrimage together with his wife. He committed the offence out of love
R R
and care for his wife, who is a heart patient. He wanted to take care of her.
S S
13. The defence submitted an apology letter by the defendant and
T T
a letter from the Chief Patron Mr. Khan Jahan Zeeb of the Hong Kong
U U
V V
- 5 -
A A
B B
Youth Betterment Association. I have read and considered both before
C sentencing. C
D D
Sentence
E E
14. There are a total of 15 charges of breach of deportation order.
F F
G 15. In determining the appropriate starting point for sentence, I G
have considered HKSAR v Joned Asri 2 , HKSAR v Mohammad
H H
Qamaaluddin Ahmed and Others3, HKSAR v Ta Dinh Son4 and HKSAR
I Pulido Rannie Laig5. I
J J
16. In HKSAR v Joned Asri, the defendant pleaded guilty to 10
K charges of breach of deportation order and the sentencing judge sentenced K
him to a total of 59 months’ imprisonment. The Hon CJHC giving the
L L
judgment of the Court held that:
M M
“The ultimate sentence, after enhancement must be
proportionate to the seriousness of the offence, reserving the
N maximum penalty for worst cases of its kind. What is not N
permissible, in the case of a repeat or even persistent offender, is
O to keep enhancing the starting point for each repeat offence, O
which is not worst of its kind, until one reaches the
P maximum …… The enhanced starting point must plateau at P
some time.
Q Q
…… the enhanced starting points ought to have flattened out
after the fifth breach, that is, 42 months’ imprisonment ……
R R
the starting points for the 5th to 14th charges should be 27, 30, 30,
S 36, 42, 42, 42, 42, 42 and 42 months’ respectively S
2
T CACC 345/2012 T
3
DCCC 531/2012
4
[2014] HKLRD (Yrbk) 310
5
U DCCC 450/2016 U
V V
- 6 -
A A
B B
Given the applicant the full one-third discount, the individual
C sentences for the ten breaches should be 18, 20, 20, 24, 28, 28, C
28, 28, 28 and 28 months.
D D
…...Having borne in mind the totality principle and the various
E matters urged by counsel…… the total sentence for the ten E
charges should be 33 months.”
F F
G 17. In HKSAR v Mohammad Qamaaluddin, the defendant G
pleaded guilty to a total of 18 counts of “breach of deportation order”. He
H H
was sentenced to 24 months for each count, to run concurrently in all 18
I charges. However, I noted that Mohammad Qamaaluddin was decided I
before Joned Asri.
J J
K 18. In HKSAR v Pulido Rannie Laig, the defendant pleaded guilty K
to a total of 15 counts of “breach of deportation order”. The defendant
L L
received a 28 months’ sentence for each count, and the sentences were to
M be served wholly concurrently. The court adopted a global approach to M
simplify the sentencing process.
N N
O 19. In the present case, the defendant has breached the O
deportation order 15 times. Repeat offending is a signification aggravating
P P
feature justifying enhancement of the starting point of 27 months’
Q Q
imprisonment.
R R
20. In HKSAR v Joned Asri the Court of Appeal held that 27
S S
months, 30 months, 36 months and 42 months were appropriate for the first
T to fifth breaches, and the enhanced starting points were flattened out after T
the fifth breach.
U U
V V
- 7 -
A A
B B
C 21. In the present case, I adopt the following starting points and C
give a one-third discount of sentence for the guilty pleas he entered.
D D
Charges Starting Point Sentence after 1/3
E discount E
1st Charge 27 months 18 months
F F
2nd Charge 30 months 20 months
G 3rd Charge 33 months 22 months G
4th Charge 36 months 24 months
H H
5th Charge 42 months 28 months
I 6th Charge 42 months 28 months I
7th Charge 42 months 28 months
J J
th
8 Charge 42 months 28 months
K K
9th Charge 42 months 28 months
L
10th Charge 42 months 28 months L
th
11 Charge 42 months 28 months
M M
12th Charge 42 months 28 months
N 13th Charge 42 months 28 months N
14th Charge 42 months 28 months
O O
15th Charge 42 months 28 months
P P
22. The mitigation advanced related mainly to his personal
Q Q
background. I see no valid mitigating factor that justifies any further
R reduction in sentence. I therefore sentenced the defendant to the reduced R
terms of imprisonment as set out in the paragraph above.
S S
T T
U U
V V
- 8 -
A A
B B
Totality
C C
23. All the offences are separate and distinct. Defence urged the
D D
court to adopt the approach of Mohammad Qamaaluddin and Pulido
E Rannie Laig, to order all sentences be run concurrently. However, the E
offences in those cases were committed within a period of 2 years. In the
F F
present case, the offences spread out over 6 years. I also bear in mind the
G totality principle, I make the following orders:- G
H H
i) 1st to 8th charges should run concurrently,
I making a total of 28 months; I
ii) 9th to 15th charges should run concurrently (a
J J
total of 28 months) but 3 months should run consecutively to
K the total sentence for 1st to 8th charges, making a total of 31 K
months for all the charges.
L L
iii) I consider the ultimate sentence of 31 months’,
M or 2 years 7 months’ imprisonment to be sufficiently reflect M
the defendant’s overall criminality and culpability in these 15
N N
charges.
O O
P P
Q Q
R R
S ( Colin Wong ) S
Deputy District Judge
T T
U U
V V