HKSAR v. Mafidianingsih Aka Mafdiyaningsih-samsul-hidayat, Endah-sri-lestari, Mafidyaningsih Samsul Hidayat, Mafidianing Samsul Hidayat and Hidayat Mafdiyaningsih Samsul

DCCC 1183/2022

[2023] HKDC 1448

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1183 OF 2022

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REASONS FOR SENTENCE

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Charges

1.The defendant pleads guilty to “failing to report on particulars” (Charge 1)  and “breaches of deportation order” (Charges 2 to 7).

Agreed Facts

2.On 27 September 2022, the defendant was intercepted and was caused to the Immigration Department for further investigation.

3.Record check revealed that the defendant was arrested by the police on 20 March 2002 under the identity of MAFDIYANINGSIH-SAMSUL-HIDAYAT with date of birth as 26 November 1973 (“ID3”). She was handed over to Immigration Department for repatriation proceedings and was repatriated to Indonesia on 18 September 2002.

4.In 2008, the defendant concealed her previous identity as ID3 and entered Hong Kong under the identity of ENDAH-SRI-LESTARI with date of birth as 12 May 1984 (“ID2”). She was arrested by police on 19 March 2009. After legal proceedings, she was handed over to Immigration Department. Fingerprint comparison revealed that she had an identity under ID3. On 18 December 2009, a Deportation Order for life under reference number “SF(D)12691” (“Deportation Order”)  was issued against the defendant. On 29 December 2009, the Deportation Order was served on the defendant with the assistance of an interpreter and the defendant was deported to Indonesia.

5.On 25 March 2015, the defendant concealed her previous identities as ID2 & ID3 and entered Hong Kong under the identity of MAFIDIANINGSIH with date of birth as 26 December 1980 (“ID1”). The defendant was found to have re-entered Hong Kong under ID1 on 19 April 2015, 24 May 2015, 4 June 2015, 25 November 2017 and 20 January 2020.

6.Fingerprint record check confirmed that the fingerprints under ID1, ID2 and ID3 belonged to the defendant.

7.A cautioned interview was conducted with the defendant in the presence of an interpreter. Under caution, the defendant had, inter alia, admitted that she had used ID3 to apply for a Hong Kong Identity Card on 21 October 1999.

8.The defendant concealed her previous identities ID2 and ID3 and applied for a Hong Kong Identity Card under ID1 on 20 November 2021 at an Immigration Branch Office. The Commissioner of Registration subsequently issued a Hong Kong Identity Card numbered WX294674(0)  (“HKIC”)  to the defendant. The HKIC showed or included particulars which differ from those previously submitted to a registration officer, and without reasonable excuse, the defendant had not reported the fact to the nearest registration, in contravention of regulation 18(1)(b)  of the Registration of Persons Regulations, Cap 177A (subject matter of Charge 1).

9.The defendant was subject to the Deportation Order since 29 December 2009. And when she entered Hong Kong on 25 March 2015, 19 April 2015, 24 May 2015, 4 June 2015, 25 November 2017 and 20 January 2020, she was in contravention of the Deportation Order (subject matter of Charges 2 to 7).

Personal Background & Mitigation

10.She is 42 years old.  She was born in Indonesia. Since 2002 until 2009, she has 4 previous convictions involving 7 charges, all except one of theft are “immigration related offences”.

11.Having canvassed on aggravating features (recidivism)  and mitigating features (guilty plea)  by referring to legal authorities, Counsel urges me to adopt a global starting point of 42 months’ imprisonment and after giving one-third discount for her guilty plea, 28 months’ imprisonment is appropriate.

Discussion

12.Charge 1 may attract a maximum sentence of 1 year and a fine at level 3. The maximum sentence for the offence of breach of deportation order (Charges 2 to 7)  on conviction upon indictment is 7 years’ imprisonment.

13.There are no sentencing guidelines for breach of deportation order. In HKSAR v Ta Dinh Son [2014] HKCA 17 or CACC 348/2013, the Court of Appeal reviewed various cases and observed that generally, for a first conviction, the starting point upon conviction is one of 42 months’ imprisonment.

14.Both parties also referred me to HKSAR v Joned Asri also known as Tri Wahyu CACC345/2012. That case involved multiple offences of breach of deportation order. The Court of Appeal in granting leave to appeal against sentence and substituting the totality of sentences from 59 months’ imprisonment to 33 months’ imprisonment stated the following:

“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 worse 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 the worst cases of its kind. The enhanced starting point must plateau at some point.”

15.It was said that what is not permissible, is to keep enhancing the starting point for each repeat offence, which is not the worst of its kind, until one reaches the maximum. The enhanced starting point must plateau at some time.

16.Counsel admitted that the defendant is a recidivist. The sentence imposed on her before has no sufficient deterrent effect and justified an upward adjustment on sentence. 

17.Her explanation for committing offence due to financial need is not a valid mitigating factor. The only powerful mitigating factor is one of her guilty plea.

Sentence

18.The defendant on her plea of guilty is convicted of 7 charges.  I adopt a starting point of 4 months’ imprisonment on Charge 1, with an enhancement of 2 months on the ground of her recidivisms, after giving one-third discount for her guilty plea, the sentence is reduced to 4 months.  

19.For Charges 2 to 7, I adopt 39 months’ imprisonment for each offence as the starting point with an enhancement of 3 months on the ground of her recidivisms and is reduced to 28 months after giving one-third discount for her guilty plea, Charges 2 to 7 are made concurrently. I take into account of the totality principle and avoid total sentence being excessive, I therefore order 2 months of Charge 1 to be served with Charges 2 to 7 consecutively.  The defendant is sentenced to a total of 30 months’ imprisonment.