DCCC703/2017 HKSAR v. CHAUDHRY MOHAMMAD ASLAM ALSO KNOWN AS ASLAM MUHAMMAD, ASLAM MOHAMMAD, YOUNAS MUHAMMAD AND YOUNAS MOHAMMAD - LawHero
DCCC703/2017
HKSAR v. CHAUDHRY MOHAMMAD ASLAM ALSO KNOWN AS ASLAM MUHAMMAD, ASLAM MOHAMMAD, YOUNAS MUHAMMAD AND YOUNAS MOHAMMAD
區域法院（刑事）HH Judge K Lo7/2/2018[2018] HKDC 255
DCCC703/2017
A A
B B
DCCC 703/2017
C [2018] HKDC 255 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 703 OF 2017
F F
G ---------------------------- G
HKSAR
H H
v
I CHAUDHRY MOHAMMAD ASLAM I
also known as ASLAM MUHAMMAD,
J ASLAM MOHAMMAD, YOUNAS J
MUHAMMAD and YOUNAS MOHAMMAD
----------------------------
K K
L Before: HH Judge K Lo L
Date: 8 February 2018
M M
Present: Mr Simon Kwong, Public Prosecutor of the Department of
N N
Justice, for HKSAR
O
Mr Hugh Rowan Hunter, instructed by Lai & Chaudhry O
Solicitors LLP, for the defendant
P P
Offence: [1] to [17] Breach of deportation order (違反遞解離境令)
Q Q
--------------------------------------
R R
REASONS FOR SENTENCE
S -------------------------------------- S
T T
U U
V V
-2-
A A
B B
1. In this case, the defendant was convicted of 17 charges of
C breach of deportation order, contrary to section 43(1)(a) of the Immigration C
Ordinance, Cap 115 on his own plea.
D D
E 2. It is agreed that the defendant had used three different E
identities to enter and stay in Hong Kong from 9 December 1992 till
F F
present.
G G
3. On 9 December 1992 he entered Hong Kong using an identity
H H
(ID 2) and was allowed to stay as a visitor. He overstayed for five months
I and was convicted of breach of condition of stay. He was removed to I
Pakistan on 24 September 1993 pursuant to a removal order.
J J
K 4. Three months later, on 29 December 1993, the defendant used K
a different identity (ID 3) and entered Hong Kong. He was later convicted
L L
of breach of condition, this time for overstaying for two years and also for
M making and/or causing to be made false or forged statement or M
representation to the Immigration officer. He was sentenced to 3 months’
N N
imprisonment and 6 months’ imprisonment respectively, to be served
O consecutively. O
P P
5. He was made the subject of a deportation order for life dated
Q 4 October 1996. The same was served on the defendant on 9 November Q
1996 and he was deported to Pakistan on the same day.
R R
S 6. About 19 months later, on 5 June 1998, the defendant returned S
to Hong Kong, this time using yet another identity (ID 1).
T T
U U
V V
-3-
A A
B B
7. He filed a notice of marriage with a Hong Kong resident.
C They solemnised their marriage on 29 June 1998 (Charge 1) and 15 days C
later on 14 July 1998, the defendant submitted application for change of
D D
status with a view to acquire residence in Hong Kong as a dependant. The
E application was approved and the defendant, under ID1, was granted right E
of abode on 31 August 2006.
F F
G 8. During the last 10 years, the defendant had travelled in and G
outside Hong Kong using ID1 16 times and therefore was in breach of the
H H
deportation order (Charge 2 to Charge 17).
I I
9. The dates of the breach of the 17 charges were: 29 June 1998,
J J
5 August 2007, 12 August 2007, 23 August 2008, 23 October 2008,
K 26 October 2008, 2 November 2008, 2 February 2009, 2 April 2009, 17 K
April 2009, 1 May 2009, 20 October 2009, 30 January 2012, 24 January
L L
2014, 13 March 2014, 30 September 2014 and 23 December 2014. They
M were committed within a period of seven and a half years. The defendant M
was arrested for the present offence on 8 June 2017.
N N
O 10. Previous convictions of the defendant are all Immigration O
offences but they are not similar to the present convictions.
P P
Q 11. According to defence counsel, Mr Hunter, the defendant was Q
a man aged 50. He received education up to primary level in Pakistan. He
R R
has divorced his Hong Kong resident wife in 2009 and has since remarried.
S He has a daughter now aged 17, born in Hong Kong and he is the sole S
breadwinner of the family. He was said to be a law-abiding citizen, save
T T
for the Immigration offences and had worked hard to support his family.
U U
V V
-4-
A A
B B
C 12. Mitigation letters were handed to court for consideration, C
including that from the defendant himself, his wife and his daughter, and
D D
there is also one from the Pakistan Islamic Welfare Union, the contents of
E which were considered. E
F F
13. Both counsel refer me to the Court of Appeal case of HKSAR
G v Joned Asri, also known as Tri Wahyu, CACV 345/2012. In that case, the G
defendant was convicted on his own plea of 10 charges of breach of
H H
deportation order within two years. He was sentenced to 33 months’
I imprisonment in total. I
J J
14. Chief Judge of the High Court said in his judgment that he
K agreed that the defendant, save for the first charge of breach of deportation K
order, cannot be considered as a first offender. It was said that he returned
L L
to Hong Kong after he was deported from Hong Kong under a different
M identity, was with the clear intention to evade detection by the authorities. M
N N
15. It was said also that it is right that the defendant be treated as
O a repeated offender subsequent to his commission of the first two or three O
similar offences.
P P
Q 16. In paragraph 16 and 17 of the judgment, the same reads:- Q
R R
“The deputy judge correctly took into account the fact that the
applicant was a repeat offender. That was an aggravating factor
S S
which justified the court’s enhancing the starting point.
However, one must bear in mind that the maximum sentence for
T the offence in question is 7 years’ imprisonment. The ultimate T
sentence, after enhancement, must be proportionate to the
seriousness of the offence, reserving the maximum penalty for
U U
V V
-5-
A A
B worst cases of its kind. What is not permissible, in the case of a B
repeat or even persistent offender, is to keep enhancing the
C starting point for each repeat offence, which is not worst of its C
kind, until one reaches the maximum. This would be wrong in
principle because, apart from the fact that it is a repeat offence,
D the nature and criminality of the offence repeated remains the D
same. The offence does not become more and more serious, thus
E
attracting a higher and higher penalty by the mere fact that it is E
a repeat offence. An offence does not become worst of its kind
just by mere repetition.
F F
In our view, there must reach a point when the fact that one is
G
dealing with a repeat offence should no longer have any G
additional enhancing effect on the already-enhanced starting
point. The maximum penalty, as mentioned, is reserved to worst
H cases of its kind. The enhanced starting point must plateau at H
some point.”
I I
17. In that case, the court took the view that the enhanced starting
J J
point ought to have flattened out after the fifth breach. 42 months’
K imprisonment was the enhanced starting point adopted by the Court of K
Appeal (differently constituted) in another case of HKSAR v Pham Van
L L
Hung, CACC 14/2011 in respect of the fifth breach.
M M
18. The sentencing starting point for the defendant in that case
N N
was 27 months, 30 months, 30 months, 36 months for the first four charges
O of breach of deportation order and for the 5th charge of breach of O
deportation order onwards, 42 months. The defendant was given one-third
P P
sentencing discount for his guilty plea and further consideration regarding
Q totality principle. Total sentence is reduced to 33 months. Q
R R
19. Repeated breaches of the deportation order is clearly
S aggravating feature of this case, save for the first breach of deportation S
order connected to the 1st charge. The defendant had committed
T T
17 breaches in 7 ½ years, compared with 10 breaches in 20 months in the
U U
V V
-6-
A A
B B
Joned Asri case. He has offered no explanation for these repeated
C breaches. C
D D
20. Before I sentence the defendant, I have considered all that is
E being said on his behalf, including but not limited to the useful mitigation E
letters.
F F
G 21. Adopting the approach in the Joned Asri case, the starting G
point of the charges are respectively:-
H H
I (1) Charge 1: 27 months’ imprisonment. I
J J
(2) Charges 2 and 3: each 30 months’ imprisonment.
K K
(3) Charge 4, Charge 5, Charge 6 and Charge 7: each 36
L L
months’ imprisonment; and
M M
(4) Charge 8 onwards up to Charge17: each 42 months’
N N
imprisonment.
O O
22. And after giving the one-third sentencing discount they would
P P
come to a discounted sentence:-
Q Q
(1) Charge 1: 18 months’ imprisonment;
R R
S (2) Charge 2 and Charge 3: 20 months’ imprisonment for S
each charge;
T T
U U
V V
-7-
A A
B B
(3) Charge 4, Charge 5, Charge 6 and Charge 7: 24 months’
C imprisonment for each charge, C
D D
(4) Charge 8 to Charge 17: 28 months’ imprisonment for
E each charge. E
F F
23. In arriving at the starting point of these charges, I have
G considered, amongst others, the dates of the breach and the intervals G
between each of these breaches.
H H
I 24. As I have said, the defendant on his timely plea is given full I
one-third discount and, bearing in mind what was being submitted on the
J J
defendant’s behalf and the totality principle, I conclude that:-
K K
(1) sentences for Charge 1, Charge 2 and Charge 3 shall
L L
run concurrently with each other;
M M
(2) sentences for Charge 4, Charge 5, Charge 6 and Charge
N N
7 shall run concurrently with each other;
O O
(3) sentences for Charge 8, Charge 9, Charge 10, Charge
P P
11 and Charge 12 shall run concurrently with each
Q other; Q
R R
(4) sentences for Charge 13 to Charge 17 shall run
S concurrently with each other; S
T T
U U
V V
-8-
A A
B B
(5) 3 months of the sentence for Charge 13 to Charge 17
C shall run consecutively to the sentence in Charge 8 to C
Charge 12, making a total sentence of 31 months’
D D
imprisonment for Charge 8 to Charge 17;
E E
(6) 3 months of the sentences for Charge 4 to Charge 7
F F
shall run consecutively to the sentence in Charge 8 to
G Charge 17, making a total sentence of 34 months’ G
imprisonment for Charge 4 to Charge 17; and
H H
I (7) 1 month of the sentences for Charge 1 to Charge 3 shall I
run consecutively to the sentence for Charge 4 to
J J
Charge 17, making a reduced total sentence of 35
K months’ imprisonment for the 17 charges. K
L L
M M
N N
O ( K Lo ) O
District Judge
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 703/2017
C [2018] HKDC 255 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 703 OF 2017
F F
G ---------------------------- G
HKSAR
H H
v
I CHAUDHRY MOHAMMAD ASLAM I
also known as ASLAM MUHAMMAD,
J ASLAM MOHAMMAD, YOUNAS J
MUHAMMAD and YOUNAS MOHAMMAD
----------------------------
K K
L Before: HH Judge K Lo L
Date: 8 February 2018
M M
Present: Mr Simon Kwong, Public Prosecutor of the Department of
N N
Justice, for HKSAR
O
Mr Hugh Rowan Hunter, instructed by Lai & Chaudhry O
Solicitors LLP, for the defendant
P P
Offence: [1] to [17] Breach of deportation order (違反遞解離境令)
Q Q
--------------------------------------
R R
REASONS FOR SENTENCE
S -------------------------------------- S
T T
U U
V V
-2-
A A
B B
1. In this case, the defendant was convicted of 17 charges of
C breach of deportation order, contrary to section 43(1)(a) of the Immigration C
Ordinance, Cap 115 on his own plea.
D D
E 2. It is agreed that the defendant had used three different E
identities to enter and stay in Hong Kong from 9 December 1992 till
F F
present.
G G
3. On 9 December 1992 he entered Hong Kong using an identity
H H
(ID 2) and was allowed to stay as a visitor. He overstayed for five months
I and was convicted of breach of condition of stay. He was removed to I
Pakistan on 24 September 1993 pursuant to a removal order.
J J
K 4. Three months later, on 29 December 1993, the defendant used K
a different identity (ID 3) and entered Hong Kong. He was later convicted
L L
of breach of condition, this time for overstaying for two years and also for
M making and/or causing to be made false or forged statement or M
representation to the Immigration officer. He was sentenced to 3 months’
N N
imprisonment and 6 months’ imprisonment respectively, to be served
O consecutively. O
P P
5. He was made the subject of a deportation order for life dated
Q 4 October 1996. The same was served on the defendant on 9 November Q
1996 and he was deported to Pakistan on the same day.
R R
S 6. About 19 months later, on 5 June 1998, the defendant returned S
to Hong Kong, this time using yet another identity (ID 1).
T T
U U
V V
-3-
A A
B B
7. He filed a notice of marriage with a Hong Kong resident.
C They solemnised their marriage on 29 June 1998 (Charge 1) and 15 days C
later on 14 July 1998, the defendant submitted application for change of
D D
status with a view to acquire residence in Hong Kong as a dependant. The
E application was approved and the defendant, under ID1, was granted right E
of abode on 31 August 2006.
F F
G 8. During the last 10 years, the defendant had travelled in and G
outside Hong Kong using ID1 16 times and therefore was in breach of the
H H
deportation order (Charge 2 to Charge 17).
I I
9. The dates of the breach of the 17 charges were: 29 June 1998,
J J
5 August 2007, 12 August 2007, 23 August 2008, 23 October 2008,
K 26 October 2008, 2 November 2008, 2 February 2009, 2 April 2009, 17 K
April 2009, 1 May 2009, 20 October 2009, 30 January 2012, 24 January
L L
2014, 13 March 2014, 30 September 2014 and 23 December 2014. They
M were committed within a period of seven and a half years. The defendant M
was arrested for the present offence on 8 June 2017.
N N
O 10. Previous convictions of the defendant are all Immigration O
offences but they are not similar to the present convictions.
P P
Q 11. According to defence counsel, Mr Hunter, the defendant was Q
a man aged 50. He received education up to primary level in Pakistan. He
R R
has divorced his Hong Kong resident wife in 2009 and has since remarried.
S He has a daughter now aged 17, born in Hong Kong and he is the sole S
breadwinner of the family. He was said to be a law-abiding citizen, save
T T
for the Immigration offences and had worked hard to support his family.
U U
V V
-4-
A A
B B
C 12. Mitigation letters were handed to court for consideration, C
including that from the defendant himself, his wife and his daughter, and
D D
there is also one from the Pakistan Islamic Welfare Union, the contents of
E which were considered. E
F F
13. Both counsel refer me to the Court of Appeal case of HKSAR
G v Joned Asri, also known as Tri Wahyu, CACV 345/2012. In that case, the G
defendant was convicted on his own plea of 10 charges of breach of
H H
deportation order within two years. He was sentenced to 33 months’
I imprisonment in total. I
J J
14. Chief Judge of the High Court said in his judgment that he
K agreed that the defendant, save for the first charge of breach of deportation K
order, cannot be considered as a first offender. It was said that he returned
L L
to Hong Kong after he was deported from Hong Kong under a different
M identity, was with the clear intention to evade detection by the authorities. M
N N
15. It was said also that it is right that the defendant be treated as
O a repeated offender subsequent to his commission of the first two or three O
similar offences.
P P
Q 16. In paragraph 16 and 17 of the judgment, the same reads:- Q
R R
“The deputy judge correctly took into account the fact that the
applicant was a repeat offender. That was an aggravating factor
S S
which justified the court’s enhancing the starting point.
However, one must bear in mind that the maximum sentence for
T the offence in question is 7 years’ imprisonment. The ultimate T
sentence, after enhancement, must be proportionate to the
seriousness of the offence, reserving the maximum penalty for
U U
V V
-5-
A A
B worst cases of its kind. What is not permissible, in the case of a B
repeat or even persistent offender, is to keep enhancing the
C starting point for each repeat offence, which is not worst of its C
kind, until one reaches the maximum. This would be wrong in
principle because, apart from the fact that it is a repeat offence,
D the nature and criminality of the offence repeated remains the D
same. The offence does not become more and more serious, thus
E
attracting a higher and higher penalty by the mere fact that it is E
a repeat offence. An offence does not become worst of its kind
just by mere repetition.
F F
In our view, there must reach a point when the fact that one is
G
dealing with a repeat offence should no longer have any G
additional enhancing effect on the already-enhanced starting
point. The maximum penalty, as mentioned, is reserved to worst
H cases of its kind. The enhanced starting point must plateau at H
some point.”
I I
17. In that case, the court took the view that the enhanced starting
J J
point ought to have flattened out after the fifth breach. 42 months’
K imprisonment was the enhanced starting point adopted by the Court of K
Appeal (differently constituted) in another case of HKSAR v Pham Van
L L
Hung, CACC 14/2011 in respect of the fifth breach.
M M
18. The sentencing starting point for the defendant in that case
N N
was 27 months, 30 months, 30 months, 36 months for the first four charges
O of breach of deportation order and for the 5th charge of breach of O
deportation order onwards, 42 months. The defendant was given one-third
P P
sentencing discount for his guilty plea and further consideration regarding
Q totality principle. Total sentence is reduced to 33 months. Q
R R
19. Repeated breaches of the deportation order is clearly
S aggravating feature of this case, save for the first breach of deportation S
order connected to the 1st charge. The defendant had committed
T T
17 breaches in 7 ½ years, compared with 10 breaches in 20 months in the
U U
V V
-6-
A A
B B
Joned Asri case. He has offered no explanation for these repeated
C breaches. C
D D
20. Before I sentence the defendant, I have considered all that is
E being said on his behalf, including but not limited to the useful mitigation E
letters.
F F
G 21. Adopting the approach in the Joned Asri case, the starting G
point of the charges are respectively:-
H H
I (1) Charge 1: 27 months’ imprisonment. I
J J
(2) Charges 2 and 3: each 30 months’ imprisonment.
K K
(3) Charge 4, Charge 5, Charge 6 and Charge 7: each 36
L L
months’ imprisonment; and
M M
(4) Charge 8 onwards up to Charge17: each 42 months’
N N
imprisonment.
O O
22. And after giving the one-third sentencing discount they would
P P
come to a discounted sentence:-
Q Q
(1) Charge 1: 18 months’ imprisonment;
R R
S (2) Charge 2 and Charge 3: 20 months’ imprisonment for S
each charge;
T T
U U
V V
-7-
A A
B B
(3) Charge 4, Charge 5, Charge 6 and Charge 7: 24 months’
C imprisonment for each charge, C
D D
(4) Charge 8 to Charge 17: 28 months’ imprisonment for
E each charge. E
F F
23. In arriving at the starting point of these charges, I have
G considered, amongst others, the dates of the breach and the intervals G
between each of these breaches.
H H
I 24. As I have said, the defendant on his timely plea is given full I
one-third discount and, bearing in mind what was being submitted on the
J J
defendant’s behalf and the totality principle, I conclude that:-
K K
(1) sentences for Charge 1, Charge 2 and Charge 3 shall
L L
run concurrently with each other;
M M
(2) sentences for Charge 4, Charge 5, Charge 6 and Charge
N N
7 shall run concurrently with each other;
O O
(3) sentences for Charge 8, Charge 9, Charge 10, Charge
P P
11 and Charge 12 shall run concurrently with each
Q other; Q
R R
(4) sentences for Charge 13 to Charge 17 shall run
S concurrently with each other; S
T T
U U
V V
-8-
A A
B B
(5) 3 months of the sentence for Charge 13 to Charge 17
C shall run consecutively to the sentence in Charge 8 to C
Charge 12, making a total sentence of 31 months’
D D
imprisonment for Charge 8 to Charge 17;
E E
(6) 3 months of the sentences for Charge 4 to Charge 7
F F
shall run consecutively to the sentence in Charge 8 to
G Charge 17, making a total sentence of 34 months’ G
imprisonment for Charge 4 to Charge 17; and
H H
I (7) 1 month of the sentences for Charge 1 to Charge 3 shall I
run consecutively to the sentence for Charge 4 to
J J
Charge 17, making a reduced total sentence of 35
K months’ imprisonment for the 17 charges. K
L L
M M
N N
O ( K Lo ) O
District Judge
P P
Q Q
R R
S S
T T
U U
V V