A A
B DCCC 576/2019 B
[2020] HKDC 553
C C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 576 OF 2019
F ----------------- F
HKSAR
G G
v
H RITA OTGON (also known as BATAA OTGON and Otgon BATAA) H
-----------------
I I
J Before : District Judge Clement Lee in Court J
Date of Verdict : 15th July 2020 at 12:15 p.m.
K K
Present : Mr. Trevor Beel, Counsel on fiat, for HKSAR/
L Director of Public Prosecutions L
Ms. Munira Moosdeen, instructed by Messrs. Jal N.
M M
Karbhari & Co. assigned by Department of Legal
N Aid for the defendant N
Offences : (1) to (10) Breach of deportation order
O O
P ------------------------------------------- P
REASONS FOR SENTENCE
Q Q
-------------------------------------------
R R
S S
Background
T T
U U
V V
- 2-
A A
B B
1. The defendant was convicted, after trial, of ten charges of
C breach of deportation order, contrary to section 43(1)(a) of the C
Immigration Ordinance, Cap. 115.
D D
E 2. I refer to the reasons for verdict for the detailed analysis. E
F Summary of findings F
G 3. On the 23rd November 2015, a deportation order G
(SF(D)15580) was issued under section 20 (1)(a) of the Immigration
H H
Ordinance, Cap. 115 requiring a female with the surname Bataa and
I given name Otgon to leave Hong Kong and from then thereafter I
prohibiting her from being in Hong Kong1. On 3rd December 2015, PW1
J J
explained and served a copy of the deportation order on the defendant.
K Between 8th April 2017 and 18th May 2019, the defendant returned to K
Hong Kong for 10 times, hence resulted in the 10 charges as she is now
L L
convicted.
M M
Defendant’s criminal record and Mitigation
N N
4. The defendant has one previous theft conviction on 14th
O O
September 2015 and received 4 months’ imprisonment. I was told that
P the said conviction led to the deportation order in the present case. P
Q Q
5. The defendant is now aged 53, married with 3 children
R respectively aged 32, 30 and 26. Ms Moosdeen submitted that the R
defendant is the only carer of her husband in Mongolia, the defendant is
S S
not a healthy woman as reflected from her medical reports, she did not
T T
1
Exhibit P1
U U
V V
- 3-
A A
B B
commit further offence whilst in breach of the deportation order. I am
C asked to exercise discretion and leniency on merciful and humanitarian C
grounds.
D D
Sentence
E E
6. In passing sentence, I have carefully considered the oral
F F
2
submissions and the legal authorities cited by Ms Moosdeen . I also
G invited the parties to look at two recent reasons for sentence on how my G
learned colleagues applied the leading authorities3. It seems to me that
H H
the defendant is not the only carer of her husband in Mongolia, she has
I three grown up children in Outer Mongolia. It is not suggested their I
children did not wish to take care of their father. I do not see from the
J J
latest document showing deterioration of her husband’s health since the
K diagnosis of liver fibrosis. Further, from the medical reports of the K
defendant, she is of relatively normal health of a lady of her age. There is
L L
no evidence on the defendant’s ill health that justify me to consider
M humanitarian grounds or merciful grounds. She did not commit further M
N
offence whilst in breach of the deportation order should not be treated as N
a valid mitigating factor, if she had, that would amount to aggravating
O O
features. Despite my request for authority on how I should exercise my
P
discretion with humanitarian or merciful grounds in mind, Ms Moosdeen P
was unable to provide me with decided cases.
Q Q
R R
2
HKSAR v Joned Asri CACC 345/2012
HKSAR v Tommy Winata CACC 357/2018
S S
HKSAR v Tarvez [2014] HKDC 736
HKSAR v Rahman Muzibur [2014] HKDC 1191
T T
3
HKSAR v Tommy Winata [2018] HKDC 1549
HKSAR v Sriatuningsih [2019] HKDC 955
U U
V V
- 4-
A A
B B
7. The relevant features in the present are: (i) the defendant is
C premeditated by changing her name shortly before she returned to Hong C
Kong; (ii) she was in breach of the deportation order for 10 times; (iii) the
D D
time span of the 10 offences was about 2 years. The defendant did not
E enter Hong Kong in the name under which she was deported. The E
defendant entered using a different name, albeit a similar name, to the
F F
name under which she was deported.
G G
8. Clearly this misled the Immigration authorities who only
H H
detected the breach of the deportation order after the defendant had
I repeatedly entered Hong Kong. I
J J
9. Section 43 provides as follows:
K K
Breach of deportation order, and landing from ship or aircraft in
which removal to be effected
L L
(1) Subject to subsection (2), if—
M M
(a) any person in respect of whom a deportation order is in force is in
N Hong Kong in contravention of the order; or N
O
(b) any person who has been placed on board a ship or aircraft O
under section 25(3) lands from the ship or aircraft before it leaves Hong
Kong,
P P
he shall be guilty of an offence and shall be liable—
Q (i) on conviction on indictment, to imprisonment for 7 years; and Q
R (ii) on summary conviction, to imprisonment for 3 years. R
S (2) A person who has not been given notice— S
(a) of a deportation order made against him;
T T
U U
V V
- 5-
A A
B B
(b) of the rescission of a suspension of the deportation order made against
him,
C shall not be guilty of an offence under subsection (1)(a). C
D D
10. There are no guideline sentences for breach of deportation
E order. Generally the starting point for a first breach is one of 27 months E
imprisonment4.
F F
G G
11. The defendant repeatedly entered Hong Kong in breach of
H
the order. In HKSAR v Joned Asri the Court of Appeal said that it was H
not open to the applicant, who was charged with ten charges of breach of
I I
deportation order, to use the fact of late detection in her favour when it
J came to sentencing and that the sentencing judge had correctly taken into J
account the fact that the applicant was a repeat offender.
K K
L 12. Similar to the present case, the defendant in Joned Asri has L
breached the deportation order ten times. Repeat offending is a
M M
significant aggravating feature justifying enhancement of the starting
N point of 27 months’ imprisonment. N
O O
13. In HKSAR v Joned Asri, the Court of Appeal held that
P starting points of 27 months, 30 months, 36 months and 42 months were P
appropriate for the first five breaches. The Court ended up with a final
Q Q
sentence of 33 months after giving one third discount for guilty plea.
R That is equivalent to about 50 months’ imprisonment as the starting point. R
S S
T T
4
HKSAR v Joned Asri also known as Tri Wahyu CACC 345/2012; HKSAR v Ta
Dinh Son, also known as Bui Trong Khoai and Ngo Van Thanh, CACC 348/2013
U U
V V
- 6-
A A
B B
14. I am satisfied a totality of starting point of 50 months’
C imprisonment is appropriate in this case. There being plausible evidence C
of the defendant’s ten visits were to accompany her husband to visit
D D
China and to buy nutritious food while in Hong Kong, I will reduce the
E sentence for 5 months. I would adopt the similar approach by assigning E
27 months for charges 1 and 2; 30 months for charges 3 and 4, 36 months
F F
for charges 5 and 6, 42 months for charges 7 and 8, 45 months for
G charges 9 and 10. G
H Totality H
I 15. In HKSAR v Joned Asri, the Court of Appeal ordered I
concurrent sentences for the first five breaches. This order must however
J J
be viewed in the context that the court was dealing with ten charges.
K K
16. Taking into account the time the defendant stayed in Hong
L L
Kong on each occasion I am satisfied a total sentence of 45 months’
M imprisonment properly reflects the defendant’s criminality on the ten M
N
charges and takes into account the defendant’s personal circumstances N
and the seriousness of the offences.
O O
P
17. Accordingly, I order all sentences to be served concurrently. P
Q Q
18. The defendant is sentenced to a total of 45 months’
R imprisonment. R
S S
T (Clement Lee) T
District Judge
U U
V V
A A
B DCCC 576/2019 B
[2020] HKDC 553
C C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 576 OF 2019
F ----------------- F
HKSAR
G G
v
H RITA OTGON (also known as BATAA OTGON and Otgon BATAA) H
-----------------
I I
J Before : District Judge Clement Lee in Court J
Date of Verdict : 15th July 2020 at 12:15 p.m.
K K
Present : Mr. Trevor Beel, Counsel on fiat, for HKSAR/
L Director of Public Prosecutions L
Ms. Munira Moosdeen, instructed by Messrs. Jal N.
M M
Karbhari & Co. assigned by Department of Legal
N Aid for the defendant N
Offences : (1) to (10) Breach of deportation order
O O
P ------------------------------------------- P
REASONS FOR SENTENCE
Q Q
-------------------------------------------
R R
S S
Background
T T
U U
V V
- 2-
A A
B B
1. The defendant was convicted, after trial, of ten charges of
C breach of deportation order, contrary to section 43(1)(a) of the C
Immigration Ordinance, Cap. 115.
D D
E 2. I refer to the reasons for verdict for the detailed analysis. E
F Summary of findings F
G 3. On the 23rd November 2015, a deportation order G
(SF(D)15580) was issued under section 20 (1)(a) of the Immigration
H H
Ordinance, Cap. 115 requiring a female with the surname Bataa and
I given name Otgon to leave Hong Kong and from then thereafter I
prohibiting her from being in Hong Kong1. On 3rd December 2015, PW1
J J
explained and served a copy of the deportation order on the defendant.
K Between 8th April 2017 and 18th May 2019, the defendant returned to K
Hong Kong for 10 times, hence resulted in the 10 charges as she is now
L L
convicted.
M M
Defendant’s criminal record and Mitigation
N N
4. The defendant has one previous theft conviction on 14th
O O
September 2015 and received 4 months’ imprisonment. I was told that
P the said conviction led to the deportation order in the present case. P
Q Q
5. The defendant is now aged 53, married with 3 children
R respectively aged 32, 30 and 26. Ms Moosdeen submitted that the R
defendant is the only carer of her husband in Mongolia, the defendant is
S S
not a healthy woman as reflected from her medical reports, she did not
T T
1
Exhibit P1
U U
V V
- 3-
A A
B B
commit further offence whilst in breach of the deportation order. I am
C asked to exercise discretion and leniency on merciful and humanitarian C
grounds.
D D
Sentence
E E
6. In passing sentence, I have carefully considered the oral
F F
2
submissions and the legal authorities cited by Ms Moosdeen . I also
G invited the parties to look at two recent reasons for sentence on how my G
learned colleagues applied the leading authorities3. It seems to me that
H H
the defendant is not the only carer of her husband in Mongolia, she has
I three grown up children in Outer Mongolia. It is not suggested their I
children did not wish to take care of their father. I do not see from the
J J
latest document showing deterioration of her husband’s health since the
K diagnosis of liver fibrosis. Further, from the medical reports of the K
defendant, she is of relatively normal health of a lady of her age. There is
L L
no evidence on the defendant’s ill health that justify me to consider
M humanitarian grounds or merciful grounds. She did not commit further M
N
offence whilst in breach of the deportation order should not be treated as N
a valid mitigating factor, if she had, that would amount to aggravating
O O
features. Despite my request for authority on how I should exercise my
P
discretion with humanitarian or merciful grounds in mind, Ms Moosdeen P
was unable to provide me with decided cases.
Q Q
R R
2
HKSAR v Joned Asri CACC 345/2012
HKSAR v Tommy Winata CACC 357/2018
S S
HKSAR v Tarvez [2014] HKDC 736
HKSAR v Rahman Muzibur [2014] HKDC 1191
T T
3
HKSAR v Tommy Winata [2018] HKDC 1549
HKSAR v Sriatuningsih [2019] HKDC 955
U U
V V
- 4-
A A
B B
7. The relevant features in the present are: (i) the defendant is
C premeditated by changing her name shortly before she returned to Hong C
Kong; (ii) she was in breach of the deportation order for 10 times; (iii) the
D D
time span of the 10 offences was about 2 years. The defendant did not
E enter Hong Kong in the name under which she was deported. The E
defendant entered using a different name, albeit a similar name, to the
F F
name under which she was deported.
G G
8. Clearly this misled the Immigration authorities who only
H H
detected the breach of the deportation order after the defendant had
I repeatedly entered Hong Kong. I
J J
9. Section 43 provides as follows:
K K
Breach of deportation order, and landing from ship or aircraft in
which removal to be effected
L L
(1) Subject to subsection (2), if—
M M
(a) any person in respect of whom a deportation order is in force is in
N Hong Kong in contravention of the order; or N
O
(b) any person who has been placed on board a ship or aircraft O
under section 25(3) lands from the ship or aircraft before it leaves Hong
Kong,
P P
he shall be guilty of an offence and shall be liable—
Q (i) on conviction on indictment, to imprisonment for 7 years; and Q
R (ii) on summary conviction, to imprisonment for 3 years. R
S (2) A person who has not been given notice— S
(a) of a deportation order made against him;
T T
U U
V V
- 5-
A A
B B
(b) of the rescission of a suspension of the deportation order made against
him,
C shall not be guilty of an offence under subsection (1)(a). C
D D
10. There are no guideline sentences for breach of deportation
E order. Generally the starting point for a first breach is one of 27 months E
imprisonment4.
F F
G G
11. The defendant repeatedly entered Hong Kong in breach of
H
the order. In HKSAR v Joned Asri the Court of Appeal said that it was H
not open to the applicant, who was charged with ten charges of breach of
I I
deportation order, to use the fact of late detection in her favour when it
J came to sentencing and that the sentencing judge had correctly taken into J
account the fact that the applicant was a repeat offender.
K K
L 12. Similar to the present case, the defendant in Joned Asri has L
breached the deportation order ten times. Repeat offending is a
M M
significant aggravating feature justifying enhancement of the starting
N point of 27 months’ imprisonment. N
O O
13. In HKSAR v Joned Asri, the Court of Appeal held that
P starting points of 27 months, 30 months, 36 months and 42 months were P
appropriate for the first five breaches. The Court ended up with a final
Q Q
sentence of 33 months after giving one third discount for guilty plea.
R That is equivalent to about 50 months’ imprisonment as the starting point. R
S S
T T
4
HKSAR v Joned Asri also known as Tri Wahyu CACC 345/2012; HKSAR v Ta
Dinh Son, also known as Bui Trong Khoai and Ngo Van Thanh, CACC 348/2013
U U
V V
- 6-
A A
B B
14. I am satisfied a totality of starting point of 50 months’
C imprisonment is appropriate in this case. There being plausible evidence C
of the defendant’s ten visits were to accompany her husband to visit
D D
China and to buy nutritious food while in Hong Kong, I will reduce the
E sentence for 5 months. I would adopt the similar approach by assigning E
27 months for charges 1 and 2; 30 months for charges 3 and 4, 36 months
F F
for charges 5 and 6, 42 months for charges 7 and 8, 45 months for
G charges 9 and 10. G
H Totality H
I 15. In HKSAR v Joned Asri, the Court of Appeal ordered I
concurrent sentences for the first five breaches. This order must however
J J
be viewed in the context that the court was dealing with ten charges.
K K
16. Taking into account the time the defendant stayed in Hong
L L
Kong on each occasion I am satisfied a total sentence of 45 months’
M imprisonment properly reflects the defendant’s criminality on the ten M
N
charges and takes into account the defendant’s personal circumstances N
and the seriousness of the offences.
O O
P
17. Accordingly, I order all sentences to be served concurrently. P
Q Q
18. The defendant is sentenced to a total of 45 months’
R imprisonment. R
S S
T (Clement Lee) T
District Judge
U U
V V