HKSAR v. Chaudhry Mohammad Aslam also known as Aslam Muhammad, Aslam Mohammad, Younas Muhammad and Younas Mohammad

DCCC 703/2017

[2018] HKDC 255

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 703 OF 2017

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REASONS FOR SENTENCE

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1.In this case, the defendant was convicted of 17 charges of breach of deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap 115 on his own plea.

2.It is agreed that the defendant had used three different identities to enter and stay in Hong Kong from 9 December 1992 till present.

3.On 9 December 1992 he entered Hong Kong using an identity (ID 2) and was allowed to stay as a visitor.  He overstayed for five months and was convicted of breach of condition of stay.  He was removed to Pakistan on 24 September 1993 pursuant to a removal order. 

4.Three months later, on 29 December 1993, the defendant used a different identity (ID 3) and entered Hong Kong.  He was later convicted of breach of condition, this time for overstaying for two years and also for making and/or causing to be made false or forged statement or representation to the Immigration officer.  He was sentenced to 3 months’ imprisonment and 6 months’ imprisonment respectively, to be served consecutively.

5.He was made the subject of a deportation order for life dated 4 October 1996.  The same was served on the defendant on 9 November 1996 and he was deported to Pakistan on the same day.

6.About 19 months later, on 5 June 1998, the defendant returned to Hong Kong, this time using yet another identity (ID 1).

7.He filed a notice of marriage with a Hong Kong resident.  They solemnised their marriage on 29 June 1998 (Charge 1) and 15 days later on 14 July 1998, the defendant submitted application for change of status with a view to acquire residence in Hong Kong as a dependant.  The application was approved and the defendant, under ID1, was granted right of abode on 31 August 2006.

8.During the last 10 years, the defendant had travelled in and outside Hong Kong using ID1 16 times and therefore was in breach of the deportation order (Charge 2 to Charge 17). 

9.The dates of the breach of the 17 charges were: 29 June 1998, 5 August 2007, 12 August 2007, 23 August 2008, 23 October 2008, 26 October 2008, 2 November 2008, 2 February 2009, 2 April 2009, 17 April 2009, 1 May 2009, 20 October 2009, 30 January 2012, 24 January 2014, 13 March 2014, 30 September 2014 and 23 December 2014.  They were committed within a period of seven and a half years.  The defendant was arrested for the present offence on 8 June 2017.

10.Previous convictions of the defendant are all Immigration offences but they are not similar to the present convictions.

11.According to defence counsel, Mr Hunter, the defendant was a man aged 50.  He received education up to primary level in Pakistan.  He has divorced his Hong Kong resident wife in 2009 and has since remarried.  He has a daughter now aged 17, born in Hong Kong and he is the sole breadwinner of the family.  He was said to be a law-abiding citizen, save for the Immigration offences and had worked hard to support his family.

12.Mitigation letters were handed to court for consideration, including that from the defendant himself, his wife and his daughter, and there is also one from the Pakistan Islamic Welfare Union, the contents of which were considered.

13.Both counsel refer me to the Court of Appeal case of HKSAR v Joned Asri, also known as Tri Wahyu, CACV 345/2012.  In that case, the defendant was convicted on his own plea of 10 charges of breach of deportation order within two years.  He was sentenced to 33 months’ imprisonment in total. 

14.Chief Judge of the High Court said in his judgment that he agreed that the defendant, save for the first charge of breach of deportation order, cannot be considered as a first offender.  It was said that he returned to Hong Kong after he was deported from Hong Kong under a different identity, was with the clear intention to evade detection by the authorities.

15.It was said also that it is right that the defendant be treated as a repeated offender subsequent to his commission of the first two or three similar offences. 

16.In paragraph 16 and 17 of the judgment, the same reads:-

“The deputy judge correctly took into account the fact that the applicant was a repeat offender. That was an aggravating factor which justified the court’s enhancing the starting point. However, one must bear in mind that the maximum sentence for the offence in question is 7 years’ imprisonment. The ultimate sentence, after enhancement, must be proportionate to the seriousness of the offence, reserving the maximum penalty for worst cases of its kind. What is not permissible, in the case of a repeat or even persistent offender, is to keep enhancing the starting point for each repeat offence, which is not worst of its kind, until one reaches the maximum. This would be wrong in principle because, apart from the fact that it is a repeat offence, the nature and criminality of the offence repeated remains the same. The offence does not become more and more serious, thus attracting a higher and higher penalty by the mere fact that it is a repeat offence. An offence does not become worst of its kind just by mere repetition.

In our view, there must reach a point when the fact that one is dealing with a repeat offence should no longer have any additional enhancing effect on the already-enhanced starting point. The maximum penalty, as mentioned, is reserved to worst cases of its kind. The enhanced starting point must plateau at some point.”

17.In that case, the court took the view that the enhanced starting point ought to have flattened out after the fifth breach. 42 months’ imprisonment was the enhanced starting point adopted by the Court of Appeal (differently constituted) in another case of HKSAR v Pham Van Hung, CACC 14/2011 in respect of the fifth breach. 

18.The sentencing starting point for the defendant in that case was 27 months, 30 months, 30 months, 36 months for the first four charges of breach of deportation order and for the 5th charge of breach of deportation order onwards, 42 months.  The defendant was given one-third sentencing discount for his guilty plea and further consideration regarding totality principle.  Total sentence is reduced to 33 months.

19.Repeated breaches of the deportation order is clearly aggravating feature of this case, save for the first breach of deportation order connected to the 1st charge.  The defendant had committed 17 breaches in 7 ½ years, compared with 10 breaches in 20 months in the  Joned Asri case.  He has offered no explanation for these repeated breaches.

20.Before I sentence the defendant, I have considered all that is being said on his behalf, including but not limited to the useful mitigation letters. 

21.Adopting the approach in the Joned Asri case, the starting point of the charges are respectively:-

(1) Charge 1: 27 months’ imprisonment.

(2) Charges 2 and 3: each 30 months’ imprisonment.

(3) Charge 4, Charge 5, Charge 6 and Charge 7: each 36 months’ imprisonment; and

(4) Charge 8 onwards up to Charge17: each 42 months’ imprisonment.

22.And after giving the one-third sentencing discount they would come to a discounted sentence:-

(1) Charge 1: 18 months’ imprisonment;

(2) Charge 2 and Charge 3: 20 months’ imprisonment for each charge;

(3) Charge 4, Charge 5, Charge 6 and Charge 7: 24 months’ imprisonment for each charge,

(4) Charge 8 to Charge 17: 28 months’ imprisonment for each charge.

23.In arriving at the starting point of these charges, I have considered, amongst others, the dates of the breach and the intervals between each of these breaches.

24.As I have said, the defendant on his timely plea is given full one-third discount and, bearing in mind what was being submitted on the defendant’s behalf and the totality principle, I conclude that:-

(1) sentences for Charge 1, Charge 2 and Charge 3 shall run concurrently with each other;

(2) sentences for Charge 4, Charge 5, Charge 6 and Charge 7 shall run concurrently with each other;

(3) sentences for Charge 8, Charge 9, Charge 10, Charge 11 and Charge 12 shall run concurrently with each other;

(4) sentences for Charge 13 to Charge 17 shall run concurrently with each other;

(5) 3 months of the sentence for Charge 13 to Charge 17 shall run consecutively to the sentence in Charge 8 to Charge 12, making a total sentence of 31 months’ imprisonment for Charge 8 to Charge 17;

(6) 3 months of the sentences for Charge 4 to Charge 7 shall run consecutively to the sentence in Charge 8 to Charge 17, making a total sentence of 34 months’ imprisonment for Charge 4 to Charge 17; and

(7) 1 month of the sentences for Charge 1 to Charge 3 shall run consecutively to the sentence for Charge 4 to Charge 17, making a reduced total sentence of 35 months’ imprisonment for the 17 charges.