DCCC324/2020 HKSAR v. GUTIERREZ MARGARITA SADIOSA - LawHero
DCCC324/2020
HKSAR v. GUTIERREZ MARGARITA SADIOSA
區域法院（刑事）HH Judge A. J. Woodcock14/9/2020[2020] HKDC 795
DCCC324/2020
A A
DCCC 324/2020
[2020] HKDC 795
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO 324 OF 2020 C
D
---------------------- D
HKSAR
E E
v
F Gutierrez Margarita Sadiosa F
(also known as Sadiosa Margarita R,
G Margarita R Sadiosa, G
Margarita C Sadiosa,
Margarita Sadiosa and
H Sadiosa R Margarita) H
----------------------
I I
Before: HH Judge A. J. Woodcock
J Date: 15 September 2020 at 10.51 am J
Present: Mr Jimmy Y T Ma, counsel on fiat, for HKSAR
Mr Oliver Howell Davies, instructed by Massie &
K Clement, assigned by DLA, for the defendant K
Offence: (1) to (13) Breach of deportation order (違反遞解離境令)
L
(14) to (18) Making a false representation to an L
Immigration Officer lawfully acting under or in the
execution of Part III of the Immigration Ordinance
M (向一名根據或為執行《入境條例》第III部而合法行事的入境事務主 M
任作出虛假的申述)
N
(19) & (20) Making a false representation for the N
purpose of obtaining an entry permit (為取得入境證而
作出虛假的申述)
O O
---------------------
P P
Reasons for Sentence
Q --------------------- Q
R 1. The defendant has pleaded guilty to 13 charges of a R
breach of a deportation order, contrary to section 43(1)(a) of
S the Immigration Ordinance, Cap 115. These charges, 1 to 13, are S
identical save for the fact they took place on different dates.
T T
They took place on 2 February 2010, 7 April 2010,
28 October 2010, 2 January 2012, 10 April 2013, 1 May 2015,
U U
27 December 2015, 24 September 2016, 12 February 2017,
CRT25/15.9.2020/JC/sc 1 DCCC 324/2020(1)/Sentence
V V
A A
9 July 2017, 6 December 2017, 10 August 2019, and
19 November 2019 respectively.
B B
C 2. The defendant also pleaded guilty to five charges of C
making a false representation to an Immigration Officer lawfully
D acting under or in the execution of Part III of the Immigration D
Ordinance, contrary to section 42(1)(a) of that ordinance. These
E E
charges, 14 to 18, are identical save for the fact they took
place on different dates. They took place on or about
F F
27 January 2011, 29 January 2013, 26 September 2016,
G 1 April 2017 and 17 December 2018 respectively. She made a G
representation to an Immigration Officer which she knew to be
H false; namely she had not changed her name before and had not H
previously been deported from Hong Kong.
I I
3. Lastly, the defendant pleaded guilty to two charges of
J J
making a false representation for the purpose of obtaining an
K
entry permit, contrary to section 42(1)(c) of the Immigration K
Ordinance. These two charges, 19 and 20, are identical save for
L the fact they took place on different dates. They took place on L
16 February 2015 and 25 August 2019 respectively. She made a
M representation to an Immigration Officer which she knew to be M
false for the purposes of obtaining an entry permit, a foreign
N N
domestic helper visa and in the reference of her employer. She
falsely declared that she had not changed her name before and
O O
had not been previously deported from Hong Kong.
P P
Facts of This Case
Q 4. When the defendant applied for a new smart Hong Kong Q
identity card replacement in December 2019, her application was
R R
assessed. During the assessment, it was suspected the defendant
was the subject of a deportation order for life issued on
S S
24 January 1996, hereinafter referred to as “the order”. In
T August 1995, she had been sentenced to 12 months’ imprisonment T
for two charges of theft and 2 months’ imprisonment for a breach
U U
CRT25/15.9.2020/JC/sc 2 DCCC 324/2020(1)/Sentence
V V
A A
of her condition of stay. It was after this that she would have
been made the subject of a deportation order for life.
B B
C 5. On 16 December 2019, the defendant was arrested by an C
Immigration Officer. Her fingerprints were taken and they were
D later found to match that of the subject of the order. Under D
caution, she admitted that her name used to be Sadiosa
E E
Margarita R, the subject of the order, but after she married,
her name became Margarita Sadiosa Gutierrez.
F F
G 6. The defendant married for the second time on G
8 September 1997. She admitted to the Immigration Department
H under caution in an interview that she then applied for a new H
passport through an employment agency in the Philippines under
I I
her married name. She then used her new passport in her married
name to apply for a foreign domestic helper job in Hong Kong.
J J
She herself was surprised when it was approved in 2004.
K K
7. She told the Immigration Officers that she later, after
L arriving in Hong Kong, used her married name to renew her L
foreign domestic helper contracts and apply for visa extensions.
M She was shown documents that related to Charges 14 to 20. Those M
were representations she made to an Immigration Officer and she
N N
confirmed she had used her married name in all of those
documents and representations.
O O
P 8. She told the Immigration Officer that she made those P
false representations in those applications so that she could
Q remain in Hong Kong as a foreign domestic helper in order to Q
support her children financially at home in the Philippines.
R R
9. The reason there are so many charges relating to a
S S
breach of a deportation order was because during the course of
T her employment, she had to enter and depart Hong Kong within T
certain timeframes according to the terms of her contract and
U did so on many times. She committed these offences even though U
CRT25/15.9.2020/JC/sc 3 DCCC 324/2020(1)/Sentence
V V
A A
she was aware she was the subject of the order issued to her in
1996 and was aware that she could not return to Hong Kong ever
B B
in her lifetime.
C C
Mitigation
D 10. Mr Davies has said all he can say on behalf of the D
defendant. She is now 55 years old, has three children and six
E E
grandchildren. She married her second husband after she was
deported from Hong Kong in 1996.
F F
G 11. She took his married name and applied for a new G
passport in that name. Her first husband was a womanizer and
H abuser who left her to bring up those three children on her own. H
She was successful in applying for work in Hong Kong and came in
I I
2010 using her married name. Before her arrest, she worked for
three different families over the course of nine years. Her
J J
husband also works in Hong Kong as a foreign domestic helper
K
which was one of the reasons for her coming here despite that K
order. She wanted to earn to support her children and
L grandchildren as well as be with her husband. L
M 12. Mr Davies has said all he can say on behalf of the M
defendant. Her best mitigation is her plea at the earliest
N N
opportunity. He does stress that although there are many
charges, they are all part and parcel of the same crime, so to
O O
speak. She went in and out of Hong Kong because she had to as
P part of her contract here, and she made false representations to P
Immigration Officers about various matters in order to keep up
Q the pretence and to keep her employment. Q
R R
13. She has not breached her order to come to Hong Kong to
commit offences as is often seen in other similar cases. I
S S
accept her intentions were not criminal in nature in that she
T did not come here to commit further crimes. She waited 14 years T
from the date of her deportation before coming to Hong Kong
U again. U
CRT25/15.9.2020/JC/sc 4 DCCC 324/2020(1)/Sentence
V V
A A
14. She is now genuinely remorseful and will never return
B B
to Hong Kong again. Her husband continues to be employed in
C Hong Kong and must stay in Hong Kong to support the family on C
his own now. I have read all the letters in mitigation and
D considered their contents. D
E E
Reasons for Sentence
15. The maximum sentence for the offence of breach of
F F
deportation order on conviction upon indictment is that of
G 7 years’ imprisonment. Although there are no sentencing G
guidelines, the Court of Appeal in the case of HKSAR v Ta Dinh
H Son [2014] HKCA l7 or CACC 348/2013 reviewed various cases and H
observed that generally, for a first conviction, the starting
I I
point after trial is one of 27 months’ imprisonment.
J J
16. I have also been referred to and considered HKSAR v
K
Joned Asri, CACC 345/2012. As far as the principles of K
sentencing are concerned, the normal starting points for
L sentence in respect of multiple commission of this offence can L
be found in this case. In that case, the court analysed the
M increase in starting point for sentences where there are M
multiple offences and says that the enhanced starting point
N N
ought to flatten out after the fifth breach or the fifth offence
at a starting point of 42 months’ imprisonment, which would lead
O O
to a sentence after deduction for a plea of guilty of 28 months’
P imprisonment. P
Q 17. The Court of Appeal in that case held that the ultimate Q
sentence after enhancement must be proportionate to the
R R
seriousness of the offence, reserving the maximum penalty for
the worst cases of its kind. It was said that what is not
S S
permissible, in the case of a repeat or even persistent
T offender, is to keep enhancing the starting point for each T
repeat offence, which is not the worst of its kind, until one
U U
CRT25/15.9.2020/JC/sc 5 DCCC 324/2020(1)/Sentence
V V
A A
reaches the maximum. The enhanced starting point must plateau at
some time.
B B
C 18. Furthermore, in the case of Joned Asri, some of those C
offences or sentences were ordered to run consecutively, which
D means that a defendant committing multiple offences over a D
period of time, such as the defendant in this case, could expect
E E
an end sentence of up to 33 months’ imprisonment. However, I do
distinguish the facts here from other similar cases where there
F F
are multiple repeat offences because as a foreign domestic
G helper, the defendant would have had to leave Hong Kong G
periodically. It was not a fresh decision or under different
H circumstances that she re-entered Hong Kong on each occasion. It H
was to continue in employment.
I I
19. Adopting the starting points from the case of Joned
J J
Asri and applying the discount of one-third which would be
K
appropriate for her early plea, the sentences for Charges 1 to K
13 will be as follows: for the 1st charge, 18 months’
L imprisonment; for the 2nd charge, 20 months’ imprisonment; for L
the 3rd charge, 20 months’ imprisonment; for the 4th charge, 24
M months’ imprisonment; and for the 5th to the 13th charge, 28 M
months’ imprisonment.
N N
20. As far as Charges 14 to 20 are concerned, they are
O O
different, very different charges but they all perpetuated her
P employment and breach of deportation order. They were P
representations the defendant had to make to either renew her
Q contract or obtain an entry permit as a foreign domestic helper. Q
I take a starting point of 24 months for each of those seven
R R
charges and apply a discount of one-third. Therefore, the
sentences for Charges 14 to 20 will be 16 months’ imprisonment.
S S
T 21. I have taken into account the totality principle as T
well as the facts of this case, why she was in Hong Kong and why
U U
CRT25/15.9.2020/JC/sc 6 DCCC 324/2020(1)/Sentence
V V
A A
the defendant repeated the offences. I will order all the
sentences to be served concurrently.
B B
C 22. Therefore, the defendant is sentenced to a total term C
of imprisonment of 28 months’ imprisonment.
D D
E E
F F
G A. J. Woodcock G
District Judge
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
CRT25/15.9.2020/JC/sc 7 DCCC 324/2020(1)/Sentence
V V
A A
DCCC 324/2020
[2020] HKDC 795
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO 324 OF 2020 C
D
---------------------- D
HKSAR
E E
v
F Gutierrez Margarita Sadiosa F
(also known as Sadiosa Margarita R,
G Margarita R Sadiosa, G
Margarita C Sadiosa,
Margarita Sadiosa and
H Sadiosa R Margarita) H
----------------------
I I
Before: HH Judge A. J. Woodcock
J Date: 15 September 2020 at 10.51 am J
Present: Mr Jimmy Y T Ma, counsel on fiat, for HKSAR
Mr Oliver Howell Davies, instructed by Massie &
K Clement, assigned by DLA, for the defendant K
Offence: (1) to (13) Breach of deportation order (違反遞解離境令)
L
(14) to (18) Making a false representation to an L
Immigration Officer lawfully acting under or in the
execution of Part III of the Immigration Ordinance
M (向一名根據或為執行《入境條例》第III部而合法行事的入境事務主 M
任作出虛假的申述)
N
(19) & (20) Making a false representation for the N
purpose of obtaining an entry permit (為取得入境證而
作出虛假的申述)
O O
---------------------
P P
Reasons for Sentence
Q --------------------- Q
R 1. The defendant has pleaded guilty to 13 charges of a R
breach of a deportation order, contrary to section 43(1)(a) of
S the Immigration Ordinance, Cap 115. These charges, 1 to 13, are S
identical save for the fact they took place on different dates.
T T
They took place on 2 February 2010, 7 April 2010,
28 October 2010, 2 January 2012, 10 April 2013, 1 May 2015,
U U
27 December 2015, 24 September 2016, 12 February 2017,
CRT25/15.9.2020/JC/sc 1 DCCC 324/2020(1)/Sentence
V V
A A
9 July 2017, 6 December 2017, 10 August 2019, and
19 November 2019 respectively.
B B
C 2. The defendant also pleaded guilty to five charges of C
making a false representation to an Immigration Officer lawfully
D acting under or in the execution of Part III of the Immigration D
Ordinance, contrary to section 42(1)(a) of that ordinance. These
E E
charges, 14 to 18, are identical save for the fact they took
place on different dates. They took place on or about
F F
27 January 2011, 29 January 2013, 26 September 2016,
G 1 April 2017 and 17 December 2018 respectively. She made a G
representation to an Immigration Officer which she knew to be
H false; namely she had not changed her name before and had not H
previously been deported from Hong Kong.
I I
3. Lastly, the defendant pleaded guilty to two charges of
J J
making a false representation for the purpose of obtaining an
K
entry permit, contrary to section 42(1)(c) of the Immigration K
Ordinance. These two charges, 19 and 20, are identical save for
L the fact they took place on different dates. They took place on L
16 February 2015 and 25 August 2019 respectively. She made a
M representation to an Immigration Officer which she knew to be M
false for the purposes of obtaining an entry permit, a foreign
N N
domestic helper visa and in the reference of her employer. She
falsely declared that she had not changed her name before and
O O
had not been previously deported from Hong Kong.
P P
Facts of This Case
Q 4. When the defendant applied for a new smart Hong Kong Q
identity card replacement in December 2019, her application was
R R
assessed. During the assessment, it was suspected the defendant
was the subject of a deportation order for life issued on
S S
24 January 1996, hereinafter referred to as “the order”. In
T August 1995, she had been sentenced to 12 months’ imprisonment T
for two charges of theft and 2 months’ imprisonment for a breach
U U
CRT25/15.9.2020/JC/sc 2 DCCC 324/2020(1)/Sentence
V V
A A
of her condition of stay. It was after this that she would have
been made the subject of a deportation order for life.
B B
C 5. On 16 December 2019, the defendant was arrested by an C
Immigration Officer. Her fingerprints were taken and they were
D later found to match that of the subject of the order. Under D
caution, she admitted that her name used to be Sadiosa
E E
Margarita R, the subject of the order, but after she married,
her name became Margarita Sadiosa Gutierrez.
F F
G 6. The defendant married for the second time on G
8 September 1997. She admitted to the Immigration Department
H under caution in an interview that she then applied for a new H
passport through an employment agency in the Philippines under
I I
her married name. She then used her new passport in her married
name to apply for a foreign domestic helper job in Hong Kong.
J J
She herself was surprised when it was approved in 2004.
K K
7. She told the Immigration Officers that she later, after
L arriving in Hong Kong, used her married name to renew her L
foreign domestic helper contracts and apply for visa extensions.
M She was shown documents that related to Charges 14 to 20. Those M
were representations she made to an Immigration Officer and she
N N
confirmed she had used her married name in all of those
documents and representations.
O O
P 8. She told the Immigration Officer that she made those P
false representations in those applications so that she could
Q remain in Hong Kong as a foreign domestic helper in order to Q
support her children financially at home in the Philippines.
R R
9. The reason there are so many charges relating to a
S S
breach of a deportation order was because during the course of
T her employment, she had to enter and depart Hong Kong within T
certain timeframes according to the terms of her contract and
U did so on many times. She committed these offences even though U
CRT25/15.9.2020/JC/sc 3 DCCC 324/2020(1)/Sentence
V V
A A
she was aware she was the subject of the order issued to her in
1996 and was aware that she could not return to Hong Kong ever
B B
in her lifetime.
C C
Mitigation
D 10. Mr Davies has said all he can say on behalf of the D
defendant. She is now 55 years old, has three children and six
E E
grandchildren. She married her second husband after she was
deported from Hong Kong in 1996.
F F
G 11. She took his married name and applied for a new G
passport in that name. Her first husband was a womanizer and
H abuser who left her to bring up those three children on her own. H
She was successful in applying for work in Hong Kong and came in
I I
2010 using her married name. Before her arrest, she worked for
three different families over the course of nine years. Her
J J
husband also works in Hong Kong as a foreign domestic helper
K
which was one of the reasons for her coming here despite that K
order. She wanted to earn to support her children and
L grandchildren as well as be with her husband. L
M 12. Mr Davies has said all he can say on behalf of the M
defendant. Her best mitigation is her plea at the earliest
N N
opportunity. He does stress that although there are many
charges, they are all part and parcel of the same crime, so to
O O
speak. She went in and out of Hong Kong because she had to as
P part of her contract here, and she made false representations to P
Immigration Officers about various matters in order to keep up
Q the pretence and to keep her employment. Q
R R
13. She has not breached her order to come to Hong Kong to
commit offences as is often seen in other similar cases. I
S S
accept her intentions were not criminal in nature in that she
T did not come here to commit further crimes. She waited 14 years T
from the date of her deportation before coming to Hong Kong
U again. U
CRT25/15.9.2020/JC/sc 4 DCCC 324/2020(1)/Sentence
V V
A A
14. She is now genuinely remorseful and will never return
B B
to Hong Kong again. Her husband continues to be employed in
C Hong Kong and must stay in Hong Kong to support the family on C
his own now. I have read all the letters in mitigation and
D considered their contents. D
E E
Reasons for Sentence
15. The maximum sentence for the offence of breach of
F F
deportation order on conviction upon indictment is that of
G 7 years’ imprisonment. Although there are no sentencing G
guidelines, the Court of Appeal in the case of HKSAR v Ta Dinh
H Son [2014] HKCA l7 or CACC 348/2013 reviewed various cases and H
observed that generally, for a first conviction, the starting
I I
point after trial is one of 27 months’ imprisonment.
J J
16. I have also been referred to and considered HKSAR v
K
Joned Asri, CACC 345/2012. As far as the principles of K
sentencing are concerned, the normal starting points for
L sentence in respect of multiple commission of this offence can L
be found in this case. In that case, the court analysed the
M increase in starting point for sentences where there are M
multiple offences and says that the enhanced starting point
N N
ought to flatten out after the fifth breach or the fifth offence
at a starting point of 42 months’ imprisonment, which would lead
O O
to a sentence after deduction for a plea of guilty of 28 months’
P imprisonment. P
Q 17. The Court of Appeal in that case held that the ultimate Q
sentence after enhancement must be proportionate to the
R R
seriousness of the offence, reserving the maximum penalty for
the worst cases of its kind. It was said that what is not
S S
permissible, in the case of a repeat or even persistent
T offender, is to keep enhancing the starting point for each T
repeat offence, which is not the worst of its kind, until one
U U
CRT25/15.9.2020/JC/sc 5 DCCC 324/2020(1)/Sentence
V V
A A
reaches the maximum. The enhanced starting point must plateau at
some time.
B B
C 18. Furthermore, in the case of Joned Asri, some of those C
offences or sentences were ordered to run consecutively, which
D means that a defendant committing multiple offences over a D
period of time, such as the defendant in this case, could expect
E E
an end sentence of up to 33 months’ imprisonment. However, I do
distinguish the facts here from other similar cases where there
F F
are multiple repeat offences because as a foreign domestic
G helper, the defendant would have had to leave Hong Kong G
periodically. It was not a fresh decision or under different
H circumstances that she re-entered Hong Kong on each occasion. It H
was to continue in employment.
I I
19. Adopting the starting points from the case of Joned
J J
Asri and applying the discount of one-third which would be
K
appropriate for her early plea, the sentences for Charges 1 to K
13 will be as follows: for the 1st charge, 18 months’
L imprisonment; for the 2nd charge, 20 months’ imprisonment; for L
the 3rd charge, 20 months’ imprisonment; for the 4th charge, 24
M months’ imprisonment; and for the 5th to the 13th charge, 28 M
months’ imprisonment.
N N
20. As far as Charges 14 to 20 are concerned, they are
O O
different, very different charges but they all perpetuated her
P employment and breach of deportation order. They were P
representations the defendant had to make to either renew her
Q contract or obtain an entry permit as a foreign domestic helper. Q
I take a starting point of 24 months for each of those seven
R R
charges and apply a discount of one-third. Therefore, the
sentences for Charges 14 to 20 will be 16 months’ imprisonment.
S S
T 21. I have taken into account the totality principle as T
well as the facts of this case, why she was in Hong Kong and why
U U
CRT25/15.9.2020/JC/sc 6 DCCC 324/2020(1)/Sentence
V V
A A
the defendant repeated the offences. I will order all the
sentences to be served concurrently.
B B
C 22. Therefore, the defendant is sentenced to a total term C
of imprisonment of 28 months’ imprisonment.
D D
E E
F F
G A. J. Woodcock G
District Judge
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
CRT25/15.9.2020/JC/sc 7 DCCC 324/2020(1)/Sentence
V V