HKSAR v. Dewapurage Anuradha Wimalasiri Aka Fernando Jenita Kodituwakku Jenat Indrani and Mahapatunage Nirmala Priyadarshani

DCCC 554 of 2023

[2023] HKDC 1563

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 554 OF 2023

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REASONS FOR SENTENCE

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1.The Defendant pleaded guilty to 15 charges of a breach of a deportation order, contrary to s 43(1)(a)  of the Immigration Ordinance, Cap 115, the particulars of those 15 charges are identical save in except that they were alleged to be committed on different dates.  For charges 1-3, they were committed on 23 March, 14 October and 14 December 2013. For charges 5-6, they were committed on 13 November 2014 and 16 November 2015. For charges 8-10, they were committed on 16 June 2016, 13 February and 21 August 2017.  For charges 12-17, they were committed on 26 April, 24 May, 3 July of 2018, 26 June, 28 August and 20 December of 2019.  For charge 19, it was committed on 27 July 2020.

2.The Defendant further pleaded guilty to 4 charges of making a false representation to an Immigration officer or Immigration assistant lawfully acting under or in the execution of Part III of the Immigration Ordinance, contrary to s 42(1)(a)  of the Immigration Ordinance, Cap 115.  The particulars of these 4 charges are that the Defendant on 4 different occasions, namely 27 January 2014 (charge 4), 22 January 2016 (charge 7), 22 February 2018 (charge 11)  and 13 January 2022 (charge 20), made a representation to an Immigration officer or Immigration assistant which she knew to be false or did not believe to be true, namely that she had not changed her name before and she had not previously been deported from Hong Kong.

3.The Defendant also pleaded guilty to a single charge fo making a false representation for the purpose of obtaining an entry permit, contrary to s 42(1)(c)  of the Immigration Ordinance, Cap 115. The particulars of this charge, charge 18, is that on or about 15 April 2020, Defendant made a representation to an Immigration officer or Immigration assistant which she knew to be false or not believing the same to be true for the purpose of obtaining a foreign domestic helper visa under the reference of her employer. In the application for the visa, Defendant falsely declared that she had not changed her name before and had not previously been deported from Hong Kong.

Facts

4.On 23 June 1998 Defendant first entered Hong Kong on the strength of a foreign domestic helper (“FDH”)  visa under the name MAHAPATUNAGE, Nirmala Priyadarshani (“1^st identity”).  She applied for a HK identity card during which she left her fingerprint and provided a photograph.  She was served with a deportation order for life on 18 July 2001 under the 1^st identity and was subsequently deported back to Sri Lanka.

5.In 2003, Defendant, under the name KODITUWAKKU, Jenat Indrani (“2^nd identity”), entered Hong Kong on the strength of a FDH visa.  She later applied for a HK identity card using the 2^nd identity and left her fingerprint marks.  She was deported back to Sri Lanka on 6 February 2012 under 2^nd identity.

6.Approximately one month later, Defendant applied to work in Hong Kong under another name FERNANDO Jenita (“3^rd identity”)  and her application was subsequently approved.  She came to Hong Kong again and applied for a HK identity card under the 3^rd identity, with fingerprint marks left during the said application.  She extended her stay as a FDH on 2014, 2016 and 2018 and left Hong Kong on 24 February 2020.

7.5 months later, on 27 July 2020, Defendant returned to Hong Kong on the strength of a FDH visa under the name DEWAPURAGE, Anuradha Wimalsiri (“4^th identity”).  She left her fingerprint marks when she applied a HK identity card under her 4^th identity.  On 17 December 2021 while staying in Hong Kong Defendant married her employer Mr Cunningham, who is a HK permanent resident.  Her visa application as a co-dependent was approved on 9 March 2022.

8.From March 2013 to February 2020 the Defendant had on 14^th occasions using her 3^rd identity entered and departed Hong Kong in contravention of the deportation order imposed upon her (charge 1-3, 5-6, 8-10 and 12-17).  While she entered Hong Kong on 27 July 2020 under her 4^th identity she was also in contravention of the order (charge 20).  And by applying (i)  her extension of stay as a FDH under the 3^rd identity on 2014, 2016, 2018 (charge 4, 7 and 11 respectively); (ii)  FDH visa application under the 4^th identity (charge 18)  and (iii)  entry for residence as dependants in Hong Kong under the 4^th identity (charge 20)  Defendant had falsely declared to the Immigration Department that she had not changed her name before and she had never been previously subject to a deportation order.

9.Defendant was arrested at her residence on 15 August 2022.  Under caution she admitted that her name was DEWAPURAGE, Anuradha Wimalsiri.  Fingerprints were lifted from Defendant upon her arrest and subsequent comparisons confirmed that the prints matched with those she left in her previous HK identity card applications.

Mitigation

10.Defendant is 53 years old.  She had 3 previous court appearances with 4 conviction records, two of them, namely making false representations and breach of deportation order which she was sentenced to 12 months’ imprisonment on 4 June 2009 are similar offences to the present case.

11.Mr Sarony, senior counsel acting for the Defendant has provided to the court a very detailed summary of the circumstances leading to the Defendant’s previous convictions and her subsequent uses of different identities entering Hong Kong which formed the subject matters of the present charges.  Defendant first came to Hong Kong to work as a domestic helper in 1998.  She quitted the job as her employer was abusive and oppressive, and eventually that led to her overstaying in Hong Kong.  She served her sentence and then was deported in 2001.

12.With the assistances of another agent, Defendant returned to work as a domestic worker under the 2^nd identity until her services were terminated in 2009.  She remained in Hong Kong and was arrested by the police as her boyfriend, whom literally financially and mentally cheating on her, reported to the Immigration Department that she was overstaying.  Defendant was then prosecuted.  She served her sentence and was permitted to stay in Hong Kong as she applied for non-refoulement claim.  During this stay she secured an employment with Mr Cunningham by using the 3^rd identity.

13.This court was told that Defendant had given her care and attention to Mr Cunningham’s partner whom was seriously ill at that time.  Her 2 year’s employment contract was extended continuously for a total of 8 years.  Defendant left Hong Kong and went back to Sri Lanka in 2020, having realised that personal attendance of an enquiry with the Immigration Department was necessary for the extension of her employment contract.  Mr Cunningham was later able to persuade the Defendant to return to Hong Kong, on the condition that she must have proper documentations.

14.As a result, Defendant entered Hong Kong in May/June 2020 under the 4^th identity.  She provided nursing care to Mr Cunningham’s partner until 2021, when his partner passed away.  He is touched by the supports and care that the Defendant had given when he was coping with the grief and they decided to get married in December 2021.  It came to a shock to Mr Cunningham when the Defendant was arrested and the matter came into light.

15.Senior counsel urged the court and I accept that the Defendant breached the deportation orders purely to secure employments and nothing else.  I also agree with senior counsel’s submission that the primary victim of the Defendant’s transgression of the law is Mr Cunningham. Despite that he continued to support her throughout the entire legal process, even realising that Defendant will certainly be deported back to Sri Lanka upon the completion of her present sentence.

Reasons for sentence

16.There are no sentencing guidelines for the offence of breach of deportation order.  In HKSAR v Ta Dinh Son [2014] HKCA 17 the Court of Appeal commented that generally for a first offender, the starting point of 27 months’ imprisonment after trial is appropriate.

17.In HKSAR v Joned Asri CACC 345/2012, the Court of Appeal noted that in respect of multiple commission of this offence, the enhanced starting point ought to have flatten out after the 5^th breach or the 5^th offence at a starting point of 42 month’s imprisonment.  The defendant in that case faced 10 charges of the breach of deportation order and the court ended up with a final sentence of 33 months’ imprisonment after taken into account the one third discount for guilty plea.  The Court of Appeal in Joned Asri added that the enhancement must be proportionate to the seriousness of the offence, reserving the maximum penalty for the worst cases of its kind.  It is however not permissible to keep enhancing for each repeated offence, which is not the worst of its kind, until one reaches maximum.

18.I see no reason to depart the sentencing principles as laid down in Joned Asri.  Adopting the principles of that case and applying the one third discount of the Defendant’s early plea, the sentence of charge 1, 2, 3, and 5 are 18 months’ imprisonment, 20 months’ imprisonment, 20 months’ imprisonment and 24 months’ imprisonment respectively.  For charge 6, 8-10, 12-17 and 19, the sentence of each charge is 28 months’ imprisonment.

19.Charge 4, 7, 11, 18 and 20 are all concerned with the false representations made to the Immigration Department when the Defendant renewed her contract, obtained an entry permit as a foreign domestic helper and applied for entry for residence as dependents.  In principle the nature of these offences are different but they are all part and parcel of the Defendant’s multiple breaches of the deportation order.  I will take a starting point of 24 months’ imprisonment for each of this charge and reduce to 16 months’ imprisonment upon the Defendant’s guilty plea.

20.I have considered everything that has been advanced by senior counsel, in particular the Defendant’s background, the reasons of her committing the offences and the emotional hardships that Mr Cunningham will probably encounter in the days to come.  I do not lose sight of the fact that the offences spanned over a period of 7 years.  Taking into account the totality principle I will make an order that the sentence of all charges to be served concurrently.

21.Hence for Charge 1-20 the Defendant is sentenced to a total term of 28 months’ imprisonment.