A A
B B
DCCC 230/2019
[2019] HKDC 955
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 230 OF 2019
E ____________ E
HKSAR
F v F
SRIATUNINGSIH
G G
(also known as SRIATUNINGSIH LASIYO
H and LASIYO SRIATUNINGSIH) H
____________
I I
Before: HH Judge Dufton
J Date: 16 July 2019 J
Present: Ms Crystal Chan, PP, of the Department of Justice,
K for HKSAR. K
Mr Oliver Davies instructed by Fairbairn Catley Low & Kong,
L for the Defendant. L
Offences: Breach of Deportation Order (違反遞解離境令)
M M
N
REASONS FOR SENTENCE N
O 1. The defendant pleads guilty to five charges of breach of O
deportation order, contrary to section 43(1)(a) of the Immigration
P P
1
Ordinance .
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2. In summary in January 2006 the defendant under the identity
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Sriatuningsih Lasiyo was convicted and sentenced to imprisonment for
S offences contrary to the Immigration Ordinance. S
T T
1
Cap 115
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3. On 27 April 2006 the defendant was made the subject of a
C deportation order prohibiting her from coming to Hong Kong for life. C
The deportation order was served on the defendant on 8 May 2006 and
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she was deported the same day.
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4. On 27 December 2018 the defendant presented Indonesian
F passport in the name of Sriatuningsih for arrival clearance at Hong Kong- F
Zhuhai-Macao Bridge Control Point. The defendant was refused entry
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when secondary examination revealed that the defendant was a returned
H deportee. H
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5. The defendant was found in possession of four landing slips
J showing she had entered Hong Kong on 28 May 2018, 20 August 2018, J
15 October 2018 and 2 November 2018 using the identity Sriatuningsih.
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The movement record showed the defendant had entered Hong Kong on
L those dates using the identity Sriatuningsih. L
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6. Under caution the defendant admitted she was served with
N the deportation order and that she was informed she was not allowed to N
enter Hong Kong again thereafter.
O O
Mitigation
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Q 7. In passing sentence, I have carefully considered the oral and Q
written submissions of Mr Davies, including that the defendant is the sole
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supporter of her family in Indonesia and remits most of her money earnt
S working in a hotel in Macao to her family in Indonesia2. S
T T
2
See §§7-10 of the skeleton mitigation submission on behalf of the defendant.
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8. I have read the mitigation letter written by the defendant in
C which she begs for a lenient sentence so she can continue to support her C
mother.
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9. Mr Davies submits that on each occasion the defendant
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entered Hong Kong she used a genuine passport in her own name and did
F not attempt to mislead the Immigration Officer regarding her identity3. F
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10. I have no hesitation in rejecting this submission. The
H defendant did not enter Hong Kong in the name under which she was H
deported. The defendant entered using a different name, albeit a similar
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name, to the name under which she was deported.
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11. Clearly this misled the Immigration authorities who only
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detected the breach of the deportation order after the defendant had
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repeatedly entered Hong Kong. L
M 12. Mr Davies submits that the defendant clearly misunderstood M
the extent of the deportation order and the fact that she was permitted to
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enter Hong Kong led her to believe the order did not apply for short visits
O or transit4. O
P P
13. The immigration records submitted by Mr Davies show that
Q on each occasion the defendant only remained in Hong Kong for a short Q
time, ranging from just over one hour to just less than thirty-six hours5.
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S S
3
See §§6 & 17 of the skeleton mitigation submission on behalf of the defendant.
T 4
T
See §17 of the skeleton mitigation submission on behalf of the defendant.
5
See §§5 & 11-14 of the skeleton mitigation submission on behalf of the defendant.
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14. The immigration records also show that the defendant
C appeared to have entered Hong Kong on sixteen other occasions between C
15 April 2012 and 19 March 2018. I make clear the defendant is to be
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sentenced only on the breaches for which she has been charged.
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15. I have no hesitation in rejecting the submission the defendant
F misunderstood the extent of the deportation order and was led to believe F
the order did not apply for short visits or transit. Under caution the
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defendant admitted she was informed she was not allowed to enter Hong
H Kong. H
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Sentence
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16. There are no guideline sentences for breach of deportation
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order. Generally the starting point for a first breach is one of 27 months
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imprisonment6. L
M 17. Mr Davies submits that the defendant having neither stayed M
for long periods of time or sought employment the circumstances are not
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similar to the usual cases and therefore a lower starting point should be
O adopted7. O
P P
18. I disagree. This is not a single isolated occasion where the
Q defendant was in transit. The defendant repeatedly entered Hong Kong in Q
breach of the order.
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S S
T 6
T
See for example HKSAR v Ta Dinh Son CACC 348/2013.
7
See §15 of the skeleton mitigation submission on behalf of the defendant.
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19. In HKSAR v Joned Asri the Court of Appeal said that it was
C not open to the applicant, who was charged with ten charges of breach of C
deportation order, to use the fact of late detection in his favour when it
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came to sentencing and that the sentencing judge had correctly taken into
E account the fact that the applicant was a repeat offender 8. E
F 20. The defendant has breached the deportation order five times. F
Repeat offending is a significant aggravating feature justifying
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enhancement of the starting point of 27 months’ imprisonment.
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21. In HKSAR v Joned Asri the Court of Appeal held that
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starting points of 27 months, 30 months, 36 months and 42 months were
J appropriate for the first five breaches9. J
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22. I am satisfied a starting point of 42 months’ imprisonment is K
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appropriate for charge 1; 27 months for charge 2, 30 months for charges 3 L
and 4 and 36 months for charge 5.
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23. Giving the defendant full credit for her pleas of guilty she is
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convicted and sentenced to 28 months’ imprisonment on charge 1, 18
O months’ imprisonment on charge 2, 20 months’ imprisonment on charges O
3 and 4 and 24 months’ imprisonment on charge 5.
P P
Q Q
R R
S S
8
T CACC 345/2012. See §§9, 13, 14 & 16. T
9
See §22. Also see HKSAR v Sondi Nudin CACC 147/2015 and HKSAR v Tommy Winata CACC
357/2018.
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Totality
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24. In HKSAR v Joned Asri the Court of Appeal ordered
D concurrent sentences for the first five breaches. This order must however D
be viewed in the context that the court was dealing with ten charges.
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F 25. Taking into account the time the defendant stayed in Hong F
Kong on each occasion I am satisfied a total sentence of 28 months’
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imprisonment properly reflects the defendant’s criminality on the five
H charges and takes into account the defendant’s personal circumstances H
and the seriousness of the offences10.
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26. Accordingly, I order all sentences to be served concurrently.
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K 27. The defendant is sentenced to a total of 28 months’ K
imprisonment.
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(D. J. DUFTON)
O District Judge O
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T T
10
See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690.
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