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

CACC 63/2018

[2018] HKCA 516

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 63 OF 2018

(ON APPEAL FROM DCCC NO 703 OF 2017)

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J U D G M E N T

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1.This is an application for leave to appeal a total sentence of 35 months’ imprisonment for 17 offences of breach of a deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap 115.

2.In the papers filed by the applicant, he has not specified any grounds of appeal, except to say that he wishes the Court to reduce his sentence, so that he can be released early in order to return to his work as a security guard and look after his family.  He adds that he is disabled with limited use of one of his legs and that he requires frequent medical treatment.

3.On 8 February 2018, the applicant pleaded guilty to the offences before District Court Judge K Lo. 

4.The facts giving rise to the offences were that the applicant, a Pakistani national, used three different identities to enter and stay in Hong Kong from 9 December 1992 until the present.  He first entered Hong Kong on 9 December 1992 and overstayed for 5 months.  He was eventually convicted of breach of condition of stay and returned to Pakistan on 24 September 1993 pursuant to a removal order.  Three months later, on 29 December 1993, he entered Hong Kong using another identity.  He was later convicted of breach of condition of stay for overstaying for two years and for making a false or forged statement or representation to an Immigration officer.  He was sentenced to a total term of 9 months’ imprisonment.  On 4 October 1996, he was made the subject of a deportation order for life.  This was served on him on 9 November 1996, whereupon he was immediately deported to Pakistan. 

5.Some 19 months later, on 5 June 1998, the applicant returned to Hong Kong using another identity (Charge 1).  On 29 June 1998, he married a local resident and applied for a dependent visa which was eventually approved.  He was granted right of abode on 31 August 2006.  He later divorced his wife in October 2009.

6.The applicant was arrested on 8 June 2017, and during the period from 2007 until his arrest, he had travelled to and from Hong Kong on 16 occasions and therefore was in breach of the deportation order on each occasion (Charges 2 to 17). 

7.In mitigation, it was submitted on behalf of the applicant that his marriage did not last very long because of cultural differences between he and his then wife.  In the meantime, he formed a relationship with an Indonesian female with whom he had a daughter in 2001.  They got married in 2002 in a religious ceremony in Pakistan even though he was still married.  His second marriage was registered in 2016 after his first marriage had been formally dissolved in 2009.  In 2005, he was involved in a road traffic accident and sustained serious injuries.  As a consequence, he had limited use of his left leg and was declared disabled.

8.It was noted that the applicant worked as a security guard and supported his wife and daughter.  It was also noted that other than the immigration offences, he had not committed any other offences in Hong Kong.

9.The judge in his sentencing remarks set out the facts of the case and the background and mitigation of the applicant.  On the question of the appropriate sentence for a breach of a deportation order, the judge was guided by HKSAR v Pham Van Hung, CACC 14/2011, 12 August 2011; HKSAR v Joned Asri, CACC 345/2013, 17 April 2013; and HKSAR v Ta Dinh [2014] 3 HKC 529.  A breach of deportation order is a serious offence, where the offender disobeys an individualised prohibition and returns to Hong Kong.  It carries a maximum term, upon indictment, of 7 years’ imprisonment.  The authorities suggest a starting point in the region of 27 months’ imprisonment for a first offence of breach of deportation order with appropriate enhancement for repeat offences that would plateau at some point. 

10.The judge calculated the starting points by applying these authorities, as well as taking into account the dates of the breaches and the intervals between them.  He adopted the following starting points for Charge 1 (first breach) of 27 months’ imprisonment; Charges 2 and 3 (second and third breach) of 30 months’ imprisonment each; Charges 4 to 7 (fourth to seventh breach) of 36 months’ imprisonment each; and Charges 8 to 17 (eighth to seventeenth breach) of 42 months’ imprisonment each. 

11.The judge gave the usual one third discount to each of the charges for the applicant’s guilty plea and the individual sentences were for Charge 1 of 18 months’ imprisonment; Charges 2 and 3 of 20 months’ imprisonment each; Charges 4 to 7 of 24 months’ imprisonment each; and Charges 8 to 17 of 28 months’ imprisonment each. 

12.The judge found no other valid mitigating factors to justify any further reduction in sentence, and in applying the totality principle, he made the sentences on Charges 1 to 3 concurrent with each other; Charges 4 to 7 concurrent with each other; Charges 8 to 12 concurrent with each other; and Charges 13 to 17 concurrent with each other.  

13.The judge then made 3 months of the concurrent sentences on Charges 13 to 17 consecutive to the concurrent sentences on Charges 8 to 12 (making 31 months’ imprisonment); 3 months of the concurrent sentences on Charges 4 to 7 consecutive to the sentences on Charges 8 to 17 (making 34 months’ imprisonment); and 1 month of the concurrent sentences of Charges 1 to 3 consecutive to the sentences on Charges 4 to 17 (making 35 months’ imprisonment).

14.The resultant sentence imposed on the applicant was 35 months’ imprisonment. 

15.In taking a global approach, to arrive at a resultant sentence of 35 months’ imprisonment after a discount of one third, the overall starting point for the 17 breaches would have been 53 months’ imprisonment.  This was proportionate to the overall criminality involved.

16.It is clear that the judge followed the relevant authorities and carefully calculated and calibrated the sentence that he finally imposed on the applicant in order to reflect the gravamen of the offence and the repeated breaches of it.  The judge applied the suggested tariff for a first offence and appropriately enhanced the additional offences in line with authority.  He gave the applicant a one third discount for his plea of guilty and appropriately aggregated the sentences after applying the totality principle.  The resultant sentence passed on the applicant was neither manifestly excessive, nor wrong in principle. 

17.For the reasons given, the application for leave to appeal against sentence is refused.

18.The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of the application.

Ms Margaret Yu, Senior Government Counsel of Department of Justice, for HKSAR

The applicant appeared in person