HKSAR v. Rita Otgon (also known as Bataa Otgon and Otgon Bataa)

DCCC 576/2019

[2020] HKDC 553

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 576 OF 2019

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REASONS FOR SENTENCE

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Background

1.The defendantwas convicted, after trial, of ten charges of breach of deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap. 115. 

2.I refer to the reasons for verdict for the detailed analysis.

Summary of findings

3.On the 23rd November 2015, a deportation order (SF(D)15580) was issued under section 20 (1)(a) of the Immigration Ordinance, Cap. 115 requiring a female with the surname Bataa and given name Otgon to leave Hong Kong and from then thereafter prohibiting her from being in Hong Kong[1]. On 3^rd December 2015, PW1 explained and served a copy of the deportation order on the defendant.  Between 8^th April 2017 and 18^th May 2019, the defendant returned to Hong Kong for 10 times, hence resulted in the 10 charges as she is now convicted.

Defendant’s criminal record and Mitigation

4.The defendant has one previous theft conviction on 14^th September 2015 and received 4 months’ imprisonment.  I was told that the said conviction led to the deportation order in the present case.

5.The defendant is now aged 53, married with 3 children respectively aged 32, 30 and 26.  Ms Moosdeen submitted that the defendant is the only carer of her husband in Mongolia, the defendant is not a healthy woman as reflected from her medical reports, she did not commit further offence whilst in breach of the deportation order.  I am asked to exercise discretion and leniency on merciful and humanitarian grounds. 

Sentence

6.In passing sentence, I have carefully considered the oral submissions and the legal authorities cited by Ms Moosdeen[2]. I also invited the parties to look at two recent reasons for sentence on how my learned colleagues applied the leading authorities[3]. It seems to me that the defendant is not the only carer of her husband in Mongolia, she has three grown up children in Outer Mongolia.  It is not suggested their children did not wish to take care of their father.  I do not see from the latest document showing deterioration of her husband’s health since the diagnosis of liver fibrosis.  Further, from the medical reports of the defendant, she is of relatively normal health of a lady of her age.  There is no evidence on the defendant’s ill health that justify me to consider humanitarian grounds or merciful grounds.  She did not commit further offence whilst in breach of the deportation order should not be treated as a valid mitigating factor, if she had, that would amount to aggravating features.  Despite my request for authority on how I should exercise my discretion with humanitarian or merciful grounds in mind, Ms Moosdeen was unable to provide me with decided cases.    

7.The relevant features in the present are: (i) the defendant is premeditated by changing her name shortly before she returned to Hong Kong; (ii) she was in breach of the deportation order for 10 times; (iii) the time span of the 10 offences was about 2 years.   The defendant did not enter Hong Kong in the name under which she was deported.  The defendant entered using a different name, albeit a similar name, to the name under which she was deported.   

8.Clearly this misled the Immigration authorities who only detected the breach of the deportation order after the defendant had repeatedly entered Hong Kong.

9.Section 43 provides as follows:

Breach of deportation order, and landing from ship or aircraft in which removal to be effected

(1) Subject to subsection (2), if—

(a) any person in respect of whom a deportation order is in force is in Hong Kong in contravention of the order; or

(b) any person who has been placed on board a ship or aircraft under section 25(3) lands from the ship or aircraft before it leaves Hong Kong,

he shall be guilty of an offence and shall be liable—

(i) on conviction on indictment, to imprisonment for 7 years; and

(ii) on summary conviction, to imprisonment for 3 years.

(2) A person who has not been given notice—

(a) of a deportation order made against him;

(b) of the rescission of a suspension of the deportation order made against him,

shall not be guilty of an offence under subsection (1)(a).

10.There are no guideline sentences for breach of deportation order.  Generally the starting point for a first breach is one of 27 months imprisonment[4].    

11.The defendant repeatedly entered Hong Kong in breach of the order.   In HKSAR v Joned Asri the Court of Appeal said that it was not open to the applicant, who was charged with ten charges of breach of deportation order, to use the fact of late detection in her favour when it came to sentencing and that the sentencing judge had correctly taken into account the fact that the applicant was a repeat offender.

12.Similar to the present case, the defendant in Joned Asri has breached the deportation order ten times.  Repeat offending is a significant aggravating feature justifying enhancement of the starting point of 27 months’ imprisonment. 

13.In HKSAR v Joned Asri, the Court of Appeal held that starting points of 27 months, 30 months, 36 months and 42 months were appropriate for the first five breaches. The Court ended up with a final sentence of 33 months after giving one third discount for guilty plea.  That is equivalent to about 50 months’ imprisonment as the starting point. 

14.I am satisfied a totality of starting point of 50 months’ imprisonment is appropriate in this case.  There being plausible evidence of the defendant’s ten visits were to accompany her husband to visit China and to buy nutritious food while in Hong Kong, I will reduce the sentence for 5 months.  I would adopt the similar approach by assigning 27 months for charges 1 and 2; 30 months for charges 3 and 4, 36 months for charges 5 and 6, 42 months for charges 7 and 8, 45 months for charges 9 and 10. 

Totality

15.In HKSAR v Joned Asri, the Court of Appeal ordered concurrent sentences for the first five breaches.  This order must however be viewed in the context that the court was dealing with ten charges. 

16.Taking into account the time the defendant stayed in Hong Kong on each occasion I am satisfied a total sentence of 45 months’ imprisonment properly reflects the defendant’s criminality on the ten charges and takes into account the defendant’s personal circumstances and the seriousness of the offences. 

17.Accordingly, I order all sentences to be served concurrently.

18.The defendant is sentenced to a total of 45 months’ imprisonment.