DCCC960/2020

DCCC960/2020

A A B B DCCC 960/2020 C [2021] HKDC 880 C D D IN THE DISTRICT COURT OF THE E HONG KONG SPECIAL ADMINISTRATIVE REGION E CRIMINAL CASE NO 960 OF 2020 F F --------------------------- G G HKSAR H v H NAIDA BADUGE NISHANTHA PRADEEP DE SILVA I I ALSO KNOWN AS BOVI THANTRIGE LASANTHA AND BOVI THANTRIGE LASANTHA J J ---------------------------- K K Before: Deputy District Judge Peter Hui L L Date: 20 July 2021 M Present: Ms Olivia Tsang, Counsel on fiat, for HKSAR M Ms Nisha Mohamed, instructed by Chaudhry Solicitors, N N assigned by the Director of Legal Aid, for the defendant O Offence: [1] to [12] Breach of deportation order (違反遞解離境令) O P P ----------------------------------------- Q Q REASONS FOR SENTENCE R ----------------------------------------- R S S 1. The defendant is facing 12 charges of Breach of Deportation T Order contrary to section 43(1)(a) of the Immigration Ordinance, Cap 115. T These charges are identical but took place on different dates, viz., 19 March U U V V  -2- A A B B 2011, 16 November 2013, 2 May 2016, 27 August 2016, 14 February 2018, C 18 February 2018, 1 September 2018, 30 June 2019, 31 August 2019, 6 C October 2019, and 27 December 2019. D D E 2. The defendant pleaded guilty to all charges. E F F 3. The Summary of Facts read and admitted by the defendant is G as follows:- G H H (a) On 27 April 2020, the defendant surrendered to the I police station for an unrelated immigration offence. I Upon fingerprint checking, his status as a deportee was J J revealed. K K (b) On 29 August 2002, a deportation order was made L L against him under the name of Lasantha Bovi Thantrige M alias Thantrige Lasantha Bovi requiring him to leave M Hong Kong and prohibiting him from being in Hong N N Kong at any time thereafter. The defendant received a O copy of the said deportation order on 5 September 2002 O and was deported to Colombo on the same day. P P Q (c) Thereafter the defendant being a person subject to the Q deportation order and in contravention thereof, entered R R Hong Kong on 12 occasions. His movement records S showed he had entered Hong Kong using his HKID S card or passport, both in the name of NAIDA T T U U V V  -3- A A B B BADUGE NISHANTHA PRADEEP DE SILVA on C those as specified under Charges 1 to 12. C D D (d) In a video-recorded interview conducted on 9 June E 2020, the defendant admitted the following under E caution:- F F G (i) His real name is Naida Baduge Nishantha G Pradeep De Silva. When he first came to Hong H H Kong in around 2000, an agent gave him a I passport under the name of Lasantha Bovi I Thantrige and told him to use that name for work. J J He later presented that passport to the law K enforcement officers who arrested him; K L L (ii) He had been deported and the deportation order M was signed by him; and M N N (iii) He had been in Hong Kong for over 16 years. He O had entered Hong Kong on a work visa in around O September 2003 and had been working as a P P domestic helper in Hong Kong since then. Q Q 4. The antecedent statement is confirmed to be true and correct R R in that:- S S (a) the defendant was born in Sri Lanka on 8 April 1971. T T He is now 50 years old; U U V V  -4- A A B B C (b) he had completed General Certificate of Secondary C Education Ordinary Level in Sri Lanka; D D E (c) he has one previous record and that is Unlawful E Possession of Dutiable Goods. He was discharged F F from prison and subsequently deported to Colombo on G 5 September 2002; G H H (d) he is married and has two daughters aged 9 and 3 in I Hong Kong. He was working as a domestic helper; I J J (e) he was arrested on 27 April 2020 and was charged with K breach of deportation order on 19 June 2020; K L L (f) he is in general good health without any illness. M M MITIGATION N N O 5. After completing his GCE advance level (different from the O antecedent statement), the defendant attended a 2-year course in a technical P P college in Sri Lanka then started working at a tea factory as machine Q operator for 4 years. He decided to come to Hong Kong after he heard he Q could get a better job there with better income. R R S 6. He came to Hong Kong with a passport which bore his true S name. The passage was arranged by an agent. After he arrived in Hong T T Kong, the agent introduced him to another agent to arrange for his stay and U U V V  -5- A A B B to find him a job before taking his money and disappeared. The new agent C took over his passport, got him a job in an “oil factory” and kept his C passport. Unbeknown to him, it turned out to be an illegal “oil factory” D D and when the Customs and Excise Department raided the “oil factory”, he E was arrested, charged and convicted for the offence of possession of E dutiable commodities. At the time of the raid, his new agent appeared and F F handed him a passport which bore the name of another person called BOVI G THANTRIGE LASANTHA. Due to ignorance and being a stranger in G town, the defendant did not reveal the truth to the authorities at the time H H and that is how the deportation order was in the name of LASANTHA I BOVI THANTRIGE alias THANTRIGE LASANTHA BOVI. On 5 I September, he received notification that there was a deportation order J J against him and he was duly deported. K K 7. In 2003 the defendant returned to Hong Kong with his L L genuine passport. The passage was arranged by an agent and got him a job M to work as a domestic helper. He remained so occupied from 2003 to 2020 M during which he was able to earn $6,000 per month. N N O 8. Of all 12 occasions he used his genuine passport to re-enter O Hong Kong which formed the basis of Charges 1-12, the purpose was either P P to renew his wife’s visa as she was working also as a domestic helper in Q Hong Kong, or to renew his own working visa or to take his daughters to Q China. R R S 9. The defendant is a good and supportive husband and father. S He has always contributed his salaries to support his family. He was T T always there when needed by his wife and his daughters. He and his U U V V  -6- A A B B daughters have been very close with each other. His current remand in C custody has caused considerable distress to his wife and daughters. When C his family visited him in prison, he had to tell his youngest daughter that D D he cannot go home with them because he was there. He is especially proud E of his elder daughter who is bright and is an excellent student. She has E won many awards in school. It is his wish that he could provide the best F F education for his children. He has also served in his community and the G temple dutifully. G H H 10. Ms Nisha Mohamed, counsel for the defendant, refers to I HKSAR v Joned Asru also known as Tri Wahyu, CACC345/2012 which is I a case that involved multiple offences of breach of deportation order. The J J Court of Appeal in granting leave to appeal against sentence and K substituting the totality of sentences from 59 months’ imprisonment to 33 K months’ imprisonment stated the following: “The deputy judge correctly L L took into account the fact that the applicant was a repeat offender. That M was an aggravating factor which justified the court’s enhancing the starting M point. However, one must bear in mind that the maximum sentence for the N N offence in question is 7 years’ imprisonment. The ultimate sentence, after O enhancement, must be proportionate to the seriousness of the offence, O reserving the maximum penalty for worst cases of its kind. What is not P P permissible, in the case of a repeat or even persistent offender, is to keep Q enhancing the starting point for each repeat offence, which is not worse of Q its kind, until one reaches the maximum. This would be wrong in principle R R because apart from the fact that it is a repeat offence, the nature and S criminality of the offence repeated remains the same. The offence does not S become more and more serious, thus attracting a higher and higher penalty, T T by the mere fact that it is a repeat offence. An offence does not become U U V V  -7- A A B B worst of its kind just by mere repetition. In our view, there must reach a C point when the fact that one is dealing with a repeat offence should no C longer have any additional enhancing effect on the already-enhanced D D starting point. The maximum penalty, as mentioned, is reserved to the E worst cases of its kind. The enhanced starting point must plateau at some E point. F F G 11. Defence counsel also refers to HKSAR v Gutierrez Margarita G Sadiosa (also known as Sadiosa Margarita R), DCCC 324/2020 which is a H H case where the defendant had 13 charges of breach of deportation order in I addition to 7 other charges and highlighted what the court said as follows I “…….. However, I do distinguish the facts here from other similar cases J J where there are multiple repeat offences because as a foreign domestic K helper, the defendant would have had to leave Hong Kong periodically. It K was not a fresh decision or under different circumstances that she re- L L entered Hong Kong on each occasion. It was to continue in employment”. M The court, after considering the defendant’s plea of guilty and the starting M point of Joned Asri, and sentenced the defendant to 28 months for the N N offences of breach of deportation order. O O 12. Defence counsel urges this court to adopt a similar approach P P as the court did in the above case for the defendant in the present case was Q also a domestic helper, and part of his re-entering Hong Kong was for the Q purpose of renewing his working visa, and not a fresh decision or under R R different circumstances of trying to seek employment. She also urges upon S this court to adopt a concurrent sentencing approach when considering S totality. T T U U V V  -8- A A B B Reasons for Sentence C C 13. The maximum sentence for the offence of breach of D D deportation order on conviction upon indictment is 7 years’ imprisonment. E E 14. There are no sentencing guidelines for this offence. In F F HKSAR v Ta Dinh Son [2014] HKCA 17 or CACC 384/2013, the Court of G Appeal reviewed various cases and observed that generally, for a first G conviction, the starting point after trial is one of 27 months’ imprisonment. H H I 15. The defendant in the present case has one conviction record I and that is the offence he committed in 2002 for unlawful possession of J J dutiable goods. This is his first conviction for breach of deportation order. K I have considered all that was said in mitigation by defence counsel and K the letters for mitigation of the defendant himself, his wife, his elder L L daughter, the Embassy of the Democratic Socialist Republic of Sri Lanka M and Sri Lankan Buddhist Cultural Centre – Hong Kong. M N N 16. The normal starting points for sentence in respect of multiple O commission of this kind of offence can be found in the case of Joned Asri, O which was referred to by counsel for the defendant. The court of Appeal P P analysed the increase in starting point for sentence where there are multiple Q offences and said that the enhanced starting point ought to flatten out after Q the fifth breach, the court of Appeal also held that the ultimate sentence R R after enhancement must be proportionate to the seriousness of the offence, S reserving the maximum penalty for the worse cases of its kind. It was said S that what is not permissible, is to keep enhancing the starting point for each T T U U V V  -9- A A B B repeat offence, which is not the worst of its kind, until one reaches the C maximum. The enhanced starting point must plateau at some time. C D D 17. The situation of the defendant in the present case is similar to E Sadiosa’s case also referred to by counsel for the defendant. Prosecution E confirmed the defendant was indeed working as a foreign domestic helper F F in Hong Kong at the time of his arrest in the present case. It is a known G fact that a foreign domestic helper may have to leave Hong Kong G periodically to continue his or her employment. I adopt what the court said H H in Sadiosa’s case that it’s not a fresh decision or under different I circumstances that he re-entered Hong Kong on each occasion. I J J 18. The defendant’s strongest mitigating factor is his plea of K guilty at the earliest opportunity. Stress and hardship brought onto himself K and to his family resulted from his commission of the offence or offences L L normally would not be taken as mitigating factor. However, in this case, M for humanitarian reason, the well-being of the family may deserve a more M lenient sentence to be imposed on the defendant. As I understood from the N N facts and mitigation, after being deported, the defendant returned to Hong O Kong in 2003, he started a family by getting married sometime after and O two children were born out of his wedlock. His elder daughter is 12 years P P old and his younger daughter is 3 years old, both were born in Hong Kong. Q His wife is working in Hong Kong legally. According to the awards Q presented to his elder daughter Naida, she attended local schools in Hong R R Kong and has a Chinese name although both parents are non-Chinese. She S is apparently a smart child with a great deal of talent proved by the awards S she achieved. She is now a Form 1 student studying at St. Paul’s Secondary T T School, a prestigious school in Hong Kong. According to the first term U U V V  - 10 - A A B B academic report, she came 1st out of 35 students in the class. I can foresee C she will have a bright future if she can maintain her good performance. C Unfortunately, the intactness of her family is unlikely to continue as long D D as the deportation order against the defendant remains effective. The E family has to deal with the dilemma sooner or later, that the prospect and E well-being of the children will one way or another be affected. F F G Sentence G H H 19. The defendant on his plea of guilty is convicted of 12 charges. I I adopt the normal starting point of 27 months’ imprisonment on Charge 1, I for his timely plea of guilty, after full one-third discount, the sentence is J J reduced to 18 months. For Charge 2, I adopt 30 months’ imprisonment as K starting point and is reduced to 20 months after one-third discount. For K Charge 3, I adopt 33 months as starting and is reduced to 22 months after L L one-third discount. For charge 4, I adopt 36 months’ imprisonment as M starting point and is reduced to 24 months after one-third discount. For M Charges 5 to Charge 12, I adopt 39 months’ imprisonment as starting point N N and reduced to 26 months after one-third discount. I take into account of O the totality principle and the humanitarian reason as stated in the preceding O paragraph into consideration, I order all the sentences to be served P P concurrently. The defendant is sentenced to 26 months’ imprisonment. Q Q R R S S ( Peter Hui ) T T Deputy District Judge U U V V