HKSAR v. Choe Uam also known as Choi Woo Am, Woo Am Choi

DCCC 985/2017

[2018] HKDC 966

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 985 OF 2017

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Reasons for Sentence

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1.The defendant has pleaded guilty before me to a total of 10 offences. They are all breach of a deportation order and date between 11 April 2015 and 14 September 2017.

2.The defendant had been made subject of a deportation order on 5 October 2010 after he had committed an offence of conspiracy to use a false instrument, and on 14 September 2017, he was intercepted at Lo Wu Control Point using a Korean passport to enter Hong Kong, and we know that since 11 April 2015, the defendant had used that identity to enter Hong Kong with the Korean passport some 108 times.  10 of those departures and arrivals have been selected to be charges today, and those tend to show the defendant entering and leaving on the same day or within a short period of entry or departure.

3.It has been advanced in mitigation, with some documentation to support it, that the defendant was in fact going through Hong Kong to Shenzhen to take part in Christian evangelisation in the Shenzhen area.

4.I will turn now to the defendant’s personal details, his antecedents.  He is a Korean national.  He is now aged 83.  He has spent a considerable part of his life outside Korea.  He has lived for periods of time in Argentina and the United States.  He has children in the United States and I am told that he has a son in Korea.  The motivating part of his life now, according to counsel, is his Christian faith, which has led to him more recently going to Shenzhen to teach Sunday School children, and he has travelled frequently between Seoul and Shenzhen, passing through Hong Kong, in the last few years.

5.It is put forward in mitigation the defendant is of what we describe as advanced age, and I think anyone who reaches the age of 83 in reasonable health could be said to be a person who is enjoying his old age.

6.The defendant has specific ailments which are tied to his advanced age.  I have a report of 20 July 2018 from the Prison Medical Services describing his problem with incontinence, and the defendant undoubtedly suffers from nocturnal incontinence.  The defendant also has lung fibrosis.  It is present in both lungs.  This can be a serious and painful condition.  It does not appear at this stage to be treated by any specific treatment, but of course it will lead to shortness of breath.

7.So the defendant’s antecedents and mitigation show three major areas that he says would require to be considered when determining his sentence.  Firstly, he suffers from ill health which goes beyond the factors one might normally expect of a man of his age.  Secondly, he is of advanced age, which the court can take as an act of mercy as a mitigating factor.  And thirdly, the defendant’s entries and departures from Hong Kong were simply a means of getting somewhere else.  It was not to commit offences in Hong Kong.

8.As far as the principles of sentence are concerned, the normal starting points for sentence in respect of multiple commission of this offence can be found in a case called HKSAR v Joned Asri [2013] HKCA 189, and in that case the case analysed the increase in starting point for sentence where there are multiple offences and says that the starting point for sentence describes as flattens out after the fifth breach or 5th offence at a starting point of 42 months’ imprisonment, which would lead to a sentence after deduction for a plea of guilty of 28 months’ imprisonment.

9.Furthermore, in the case of Joned Asri, certain of those offences or sentences were ordered to run consecutively, which means that a defendant committing multiple offences over a period of time such as the defendant in this case could expect an end sentence of up to 33 months’ imprisonment.

10.When one deals with the mitigating factors here, firstly there are questions of age and ill health.  There is no rule of law that the court must deduct from the sentence of imprisonment to reflect those mitigating factors, but the court can take it into account where it thinks appropriate and as an act of mercy it is a basis for discounting sentence.

11.That was in fact an indication of HKSAR v Jackson‑Lipkin HCMA 173/2007.

12.I consider that the approach I shall take in this case is to indicate what I consider to be the proper starting point as derived from Joned Asri, then discount that sentence by one‑third, then indicate what deduction, if any, should be given as an act of mercy.

13.Adopting the starting points from the case of Joned Asri and the deductions of one‑third which would be appropriate, the sentences on the 10 charges would be as follows:

on the 1st charge, 18 months;

on the 2nd charge, 20 months;

on the 3rd charge, 20 months;

on the 4th charge, 24 months; and

on the 5th to 10th charges, 28 months.

14.I do consider that in this case there should be a deduction for both ill health and advanced age, and I think it should be done from this part of the sentencing process rather than from the original starting point.  I consider that each sentence should be deducted by a further 8 months for those factors, which leads to sentences on the 10 charges as follows:

1st charge, 10 months;

2nd charge, 12 months;

3rd charge, 12 months;

4th charge, 16 months; and

5th to 10th charges, 20 months.

15.I finally need to decide how those sentences should be served; should they be served consecutively or concurrently or partly consecutively.  In resolving this issue, I do bear in mind the nature of the defendant’s entries and departures from Hong Kong in which the defendant was using Hong Kong as a transit point from Seoul to Shenzhen where he was doing his mission work.

16.Accordingly, I shall order all the sentences to be served concurrently to a total of 20 months’ imprisonment.