HKSAR v. Enriquez Diosdado Jr. Medina

DCCC 874/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 874 OF 2015

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of “Breach of deportation order”, contrary to section 43(1)(a) of the Immigration Ordinance, Cap. 115.

Facts

2.On 2 August 2015, the defendant presented himself for arrival clearance at the Hong Kong International Airport on the strength of a Philippines passport.  Officers found him suspicious and referred him to secondary examination. 

3.During secondary examination, the defendant denied knowledge about other identities and insisted that he had only one set of identity.    He further claimed that he had never been to Hong Kong before 19 November 2014.

4.Subsequent fingerprint check revealed that the defendant is the subject of a deportation order dated 11 June 1998 requiring him to leave Hong Kong and prohibiting him from being in Hong Kong anytime thereafter.  

Mitigation

5.The defendant is aged 63, born in Manila.  He is a widower and he lived alone in Manila prior to the present offence.  He has 11 previous conviction records, 4 of them are for the same offence.  His last conviction is in 2011, which is also for breach of deportation order.  On that occasion, he was sentenced to 24 months’ imprisonment.  

6.In mitigation, it was submitted that the approach adopted by the Court of Appeal in HKSAR v Joned Asri aka Tri Wahyu, CACC 345/2012, a case which was submitted by the prosecution, should not be adopted in the present case as the defendant of the present case is only convicted of one offence, not 5 offences in one go.  It was submitted that the appropriate starting point should be between 24 and 30 months.  As to why the defendant committed the offence, this court was told that the defendant was alone in Manila, he was invited by his friends in Hong Kong and he therefore came to Hong Kong.  It was also submitted that given the defendant’s age, it was unlikely that he would re-offend again.

Sentence

7.In HKSAR v Ta Dinh Son aka Bui Trong Khoai and Ngo Van Thanh, CACC 348/2013, the Court of Appeal acknowledged that generally for a first offence of this nature, the starting point after trial is one of 27 months’ imprisonment.   Of course, the starting point can be adjusted for aggravating or mitigating factors.  The case of HKSAR v Pham Van Hung, CACC 14/2011 was mentioned in the authority submitted by the prosecution.  In that case, the appellant appealed against the sentence on a charge of “unlawful remaining” and a charge of “breach of deportation order”. That appellant had 4 previous convictions for breach of deportation order.  In that case, the Court of Appeal considered that the appropriate starting point for the offence of breach of deportation order was 42 months.

8.In the present case, the defendant has 4 previous convictions for the same offence.  The last conviction is in 2011.  Apparently the previous sentences imposed on him did not deter him from committing further similar offence.  This is also an aggravating factor which justifies enhancement of the starting point.  Taking into consideration the judgment in Pham Van Hung, I consider the appropriate starting point should be 42 months’ imprisonment.  Given the defendant pleaded guilty to the offence, he is entitled to the usual 1/3 discount on guilty plea.  The sentence is thus reduced to 28 months’ imprisonment.  I hereby sentence the defendant to 28 months’ imprisonment.