DCCC167/2020 HKSAR v. GURUNG RAM BAHADUR (also known as MAN Bahadur Gurung and GURUNG Man Bahadur) - LawHero
DCCC167/2020
HKSAR v. GURUNG RAM BAHADUR (also known as MAN Bahadur Gurung and GURUNG Man Bahadur)
區域法院（刑事）HH Judge Sham2/8/2020[2020] HKDC 627
DCCC167/2020
A A
B B
DCCC 167/2020
C [2020] HKDC 627 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 167 OF 2020
F F
G ------------------------------ G
HKSAR
H H
v
I GURUNG Ram Bahadur I
(also known as MAN Bahadur Gurung
J J
and GURUNG Man Bahadur)
K ------------------------------ K
L L
Before: HH Judge Sham
M Date: 3 August 2020 M
Present: Mr Timmy Yip, Counsel on fiat, for HKSAR
N N
Mr Giles Surman instructed by Messrs. Massie & Clement
O assigned by the Director of Legal Aid for the defendant. O
Offence: [1] - [6] Breach of deportation order (違反遞解離境令)
P P
Q Q
---------------------------------------
R
REASONS FOR SENTENCE R
---------------------------------------
S S
T T
U U
V V
-2-
A A
B B
1. The defendant, a 49-year-old Nepalese man, pleaded guilty
C before me to 6 counts of breach of deportation order, contrary to section C
43(1)(a) of the Immigration Ordinance.
D D
E 2. In 1993, the defendant first came to visit Hong Kong with a E
Nepalese passport, but in October the same year he was sentenced by a
F F
local court to 6 months’ imprisonment for the offence of drug trafficking.
G After serving the sentence, he was deported to his home country (Nepal) G
on 20 January 1994 under a deportation order which has remained in force
H H
up to now.
I I
3. The defendant having been ordered to leave had returned to
J Hong Kong in breach of the deportation order at least six times in the J
subsequent years, thus forming the subject matters of the six charges:
K K
L Charge 1 – 2 February 2013; L
Charge 2 – 6 July 2013;
M M
Charge 3 – 23 November 2013;
N Charge 4 – 2 March 2014; N
Charge 5 – 9 February 2018;
O O
Charge 6 – 20 January 2020.
P P
4. In July 2011, the defendant applied for a dependant visa,
Q which was approved by the Immigration Department on 8 November 2012, Q
to join his wife in Hong Kong using a new identity - a slightly different
R R
name and a different date of birth (three years younger than the one before).
S S
5. On 2 February 2013 (Charge 1), the defendant successfully
T T
re-entered Hong Kong using a Nepalese passport with the new identity;
U U
V V
-3-
A A
B B
two days later, he was able to obtain a Hong Kong identity card with this
C new identity and in the ensuing months till the end of 2013, he had used C
the ID card to travel in and out of Hong Kong three times (Charges 2, 3,
D D
4).
E E
6. On 9 February 2018 (Charge 5), the defendant was arrested
F by customs officers in Jordan, Hong Kong for matters not relating to the F
deportation order and was later released on bail. About a week later, he left
G G
Hong Kong.
H H
7. His breach of the deportation order was not discovered until
I I
almost two years later when he tried to get back in Hong Kong on 20
J January 2020 (Charge 6), he was then arrested at the airport for breaching J
deportation order.
K K
8. The defendant has only one prior conviction, i.e., drug
L L
trafficking back in 1993 for which he was given a jail term of six months.
M M
9. In mitigation, the court heard that the defendant has had two
N N
marriages, he has three children (aged 15, 21, 22) all in Nepal from his first
O
marriage; whilst for the second marriage, they have been married for 9 O
years, his current wife is now living in the UK.
P P
10. The defendant had a tough upbringing, counsel for the
Q Q
defendant, Mr Surman said, he came from the mountain areas, and did not
R receive any formal education and is an illiterate. As far as health is R
concerned, the defendant is suffering from diabetes and asthma which
S S
present no major problem at the moment having been medically taken care
T of while in custody. T
U U
V V
-4-
A A
B B
11. Mr Surman said that the defendant committed no further
C offences after wrongfully entering Hong Kong, and he was only sitting C
around and would like to return to Nepal at the first opportunity.
D D
12. When speaking of the sentences, Mr Surman proposed the
E E
following sentences citing in support the case of Joned Asri CACC
F 345/2012, the individual sentences after plea for the six charges should be F
18, 20, 20, 24, 28, 28 months’ imprisonment (adopting the same individual
G G
sentences as in Asri case) and asked the court to pass an overall concurrent
H sentence of 28 months. H
I I
13. However, I do not think it right to have all the sentences made
J concurrently for I am of the view that notwithstanding a smaller number of J
charges, the overall criminality of the present case is no less, if not worse,
K K
than that of the Asri case.
L L
14. The Court of Appeal in Asri case held that while accepting
M that a sentencing judge may enhance the starting point of any subsequent M
charges for a repeat offender, it is not permissible to keep enhancing until
N N
one reaches the maximum term of the offence because such term is
O reserved only for the worst of its kind, and an offence does not become one O
just by mere repetition.
P P
Q 15. In Asri case, the appellant faced 10 charges of breach of Q
deportation order all of which were committed over a period of 20 months.
R R
Here in the present case, the defendant committed six within the space of
S 7 years. Comparatively speaking, the defendant had spent more time S
remaining in Hong Kong than the one in Asri case.
T T
U U
V V
-5-
A A
B B
16. The offence of breach of deportation order is a continuing one
C –so long as those served with the deportation orders remain in Hong Kong, C
they are in breach of the order and thus continue to commit the offence
D D
until the time they are deported.
E E
17. I would adopt a similar approach as the Court of Appeal did
F in Asri case. Having given a one-third discount, the individual sentences F
for the six offences are as follows:
G G
H
Charge 1 – 18 months; H
Charge 2 – 20 months;
I I
Charge 3 – 20 months;
J Charge 4 – 24 months; J
Charge 5 – 28 months;
K K
Charge 6 – 28 months;
L L
And I order the terms for the first five breaches to run concurrently with
M M
one another but consecutively to 2 months of the last, the total term is one
N of 30 months. N
O 18. Insofar as mitigation is concerned, there isn’t anything of O
substance besides his guilty pleas. There being no reasons for any further
P P
reduction in sentence, the defendant is therefore sentenced to 30 months’
Q imprisonment. Q
R R
S S
( Sham )
T T
District Judge
U U
V V
A A
B B
DCCC 167/2020
C [2020] HKDC 627 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 167 OF 2020
F F
G ------------------------------ G
HKSAR
H H
v
I GURUNG Ram Bahadur I
(also known as MAN Bahadur Gurung
J J
and GURUNG Man Bahadur)
K ------------------------------ K
L L
Before: HH Judge Sham
M Date: 3 August 2020 M
Present: Mr Timmy Yip, Counsel on fiat, for HKSAR
N N
Mr Giles Surman instructed by Messrs. Massie & Clement
O assigned by the Director of Legal Aid for the defendant. O
Offence: [1] - [6] Breach of deportation order (違反遞解離境令)
P P
Q Q
---------------------------------------
R
REASONS FOR SENTENCE R
---------------------------------------
S S
T T
U U
V V
-2-
A A
B B
1. The defendant, a 49-year-old Nepalese man, pleaded guilty
C before me to 6 counts of breach of deportation order, contrary to section C
43(1)(a) of the Immigration Ordinance.
D D
E 2. In 1993, the defendant first came to visit Hong Kong with a E
Nepalese passport, but in October the same year he was sentenced by a
F F
local court to 6 months’ imprisonment for the offence of drug trafficking.
G After serving the sentence, he was deported to his home country (Nepal) G
on 20 January 1994 under a deportation order which has remained in force
H H
up to now.
I I
3. The defendant having been ordered to leave had returned to
J Hong Kong in breach of the deportation order at least six times in the J
subsequent years, thus forming the subject matters of the six charges:
K K
L Charge 1 – 2 February 2013; L
Charge 2 – 6 July 2013;
M M
Charge 3 – 23 November 2013;
N Charge 4 – 2 March 2014; N
Charge 5 – 9 February 2018;
O O
Charge 6 – 20 January 2020.
P P
4. In July 2011, the defendant applied for a dependant visa,
Q which was approved by the Immigration Department on 8 November 2012, Q
to join his wife in Hong Kong using a new identity - a slightly different
R R
name and a different date of birth (three years younger than the one before).
S S
5. On 2 February 2013 (Charge 1), the defendant successfully
T T
re-entered Hong Kong using a Nepalese passport with the new identity;
U U
V V
-3-
A A
B B
two days later, he was able to obtain a Hong Kong identity card with this
C new identity and in the ensuing months till the end of 2013, he had used C
the ID card to travel in and out of Hong Kong three times (Charges 2, 3,
D D
4).
E E
6. On 9 February 2018 (Charge 5), the defendant was arrested
F by customs officers in Jordan, Hong Kong for matters not relating to the F
deportation order and was later released on bail. About a week later, he left
G G
Hong Kong.
H H
7. His breach of the deportation order was not discovered until
I I
almost two years later when he tried to get back in Hong Kong on 20
J January 2020 (Charge 6), he was then arrested at the airport for breaching J
deportation order.
K K
8. The defendant has only one prior conviction, i.e., drug
L L
trafficking back in 1993 for which he was given a jail term of six months.
M M
9. In mitigation, the court heard that the defendant has had two
N N
marriages, he has three children (aged 15, 21, 22) all in Nepal from his first
O
marriage; whilst for the second marriage, they have been married for 9 O
years, his current wife is now living in the UK.
P P
10. The defendant had a tough upbringing, counsel for the
Q Q
defendant, Mr Surman said, he came from the mountain areas, and did not
R receive any formal education and is an illiterate. As far as health is R
concerned, the defendant is suffering from diabetes and asthma which
S S
present no major problem at the moment having been medically taken care
T of while in custody. T
U U
V V
-4-
A A
B B
11. Mr Surman said that the defendant committed no further
C offences after wrongfully entering Hong Kong, and he was only sitting C
around and would like to return to Nepal at the first opportunity.
D D
12. When speaking of the sentences, Mr Surman proposed the
E E
following sentences citing in support the case of Joned Asri CACC
F 345/2012, the individual sentences after plea for the six charges should be F
18, 20, 20, 24, 28, 28 months’ imprisonment (adopting the same individual
G G
sentences as in Asri case) and asked the court to pass an overall concurrent
H sentence of 28 months. H
I I
13. However, I do not think it right to have all the sentences made
J concurrently for I am of the view that notwithstanding a smaller number of J
charges, the overall criminality of the present case is no less, if not worse,
K K
than that of the Asri case.
L L
14. The Court of Appeal in Asri case held that while accepting
M that a sentencing judge may enhance the starting point of any subsequent M
charges for a repeat offender, it is not permissible to keep enhancing until
N N
one reaches the maximum term of the offence because such term is
O reserved only for the worst of its kind, and an offence does not become one O
just by mere repetition.
P P
Q 15. In Asri case, the appellant faced 10 charges of breach of Q
deportation order all of which were committed over a period of 20 months.
R R
Here in the present case, the defendant committed six within the space of
S 7 years. Comparatively speaking, the defendant had spent more time S
remaining in Hong Kong than the one in Asri case.
T T
U U
V V
-5-
A A
B B
16. The offence of breach of deportation order is a continuing one
C –so long as those served with the deportation orders remain in Hong Kong, C
they are in breach of the order and thus continue to commit the offence
D D
until the time they are deported.
E E
17. I would adopt a similar approach as the Court of Appeal did
F in Asri case. Having given a one-third discount, the individual sentences F
for the six offences are as follows:
G G
H
Charge 1 – 18 months; H
Charge 2 – 20 months;
I I
Charge 3 – 20 months;
J Charge 4 – 24 months; J
Charge 5 – 28 months;
K K
Charge 6 – 28 months;
L L
And I order the terms for the first five breaches to run concurrently with
M M
one another but consecutively to 2 months of the last, the total term is one
N of 30 months. N
O 18. Insofar as mitigation is concerned, there isn’t anything of O
substance besides his guilty pleas. There being no reasons for any further
P P
reduction in sentence, the defendant is therefore sentenced to 30 months’
Q imprisonment. Q
R R
S S
( Sham )
T T
District Judge
U U
V V