HKSAR v. Tennakoon Chamika Roshan

DCCC 806/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 806 OF 2015

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Reasons for Sentence

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1.The defendant has pleaded guilty to two charges: the 1st charge being breach of a deportation order; and the 2nd charge, taking employment while being a person in respect of whom a deportation order is in force.

2.The facts of the offence have been agreed. These show that the apprehension of the offences are a result of that of an operation by Labour Department and Immigration officers, namely on 10 August 2015 at a market garden at Pat Heung in New Territories the defendant was seen to be there working and was arrested.

3.A subsequent investigation shows that the defendant had been employed by a Chinese male at the vicinity.  He had been employed there since 17 April 2015.  He had been employed as a domestic helper to work and resided at another address.  He had entered Hong Kong on 1 August 2015 with an employment visa.  He used a Sri Lankan passport in a name of Tennakoon Chamika Roshan.

4.Later there was a fingerprint check.  It showed the defendant had been a Form 8 holder in a different name, and that is: Rangikarathnayaka Mudiyanselag Nuwan Rangika.  He had made a non-refoulement claim which had been rejected on 10 December 2014.  An appeal against that rejection had been made and dismissed on 22 April 2015. 

5.Following that, a deportation order had been made dated 9 June 2015 and the defendant had been deported back to Sri Lanka on 16 June 2015.  So at the time of his arrest, the defendant was employed as a domestic helper in Hong Kong whilst the deportation order was in force. 

6.Those are the facts.  Those are all agreed by the defendant. 

7.The defendant’s criminal record was also agreed.  He has offences dating from June 2009 which related to using an identity card, possession of an identity card relating to another person and breach of condition to stay for which he received sentences of imprisonment, and the longest being one of 15 months’ imprisonment for the identity card offences.

8.The defendant is aged 32.  He is Sri Lankan and has been employed in Hong Kong as a gardener. 

9.In mitigation I was referred to the defendant’s pleas of guilty to these offences.  I also note that after the defendant’s arrest for these matters he had made a further non‑refoulement claim on 21 September 2015 which has recently also been rejected.

10.As far as the sentence on these matters is concerned there are guideline sentences for both offences.  They are clearly set out in the relevant authorities.  As far as the 1st charge is concerned, that is the charge of breach of a deportation order, this is a first offence and the starting point for sentence after conviction after trial for the first offence (breach of deportation order) is 27 months’ imprisonment.  The defendant has pleaded guilty to that offence so he is entitled to a one-third deduction.  The sentence for the 1st charge should be one of 18 months’ imprisonment.

11.As far as the 2nd offence is concerned, there are again guideline sentences for that offence which say that in respect of that particular offence a sentence of imprisonment is appropriate and a sentence of imprisonment after plea of guilty should be one of 15 months’ imprisonment for a first offence.  Although the defendant has other immigration offences this is, in fact, the first offence of this kind so the sentence should be one of 15 months’ imprisonment on the 2nd charge.

12.I have to also consider the question of overall totality.  Although both offences relate to the defendant’s entering Hong Kong whilst subject to the deportation order, they are of course separate and distinct offences because the defendant has taken up employment whilst subject to that deportation order. 

13.However, in considering questions of: to what extent offences should be served consecutively or concurrently, I keep in mind that the appropriate overall totality of sentence should be imposed.  I shall achieve that in this way. 

14.As I have said, the sentence on the 1st charge, breach of deportation order, is one of 18 months’ imprisonment.  The sentence on the 2nd charge, that of taking employment whilst being a person in respect of whom a deportation order in force, the sentence should be one of 15 months’ imprisonment.  I shall order, to achieve the correct overall totality, that 3 months of the 2nd charge, Charge 2, be served consecutively to the sentence on Charge 1.  Therefore, a total sentence of 21 months’ imprisonment for both offences.