HKSAR v. Kaewkert Kwanjai

DCCC 793/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 793 of 2013

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Reasons for Sentence

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1.Defendant, you have pleaded guilty to nine charges before this court of a breach of deportation order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap 115.

2.On 27 June 2013 police intercepted you at the premises on the 2nd floor of No 173 Hennessy Road, Wan Chai, Hong Kong.  Your fingerprints matched those of a person with another name called Jum-Ai Kwanjai against whom a deportation order dated 27 July 2005 was in force.

3.Under the order you were required to leave Hong Kong and were prohibited from being in Hong Kong at any time thereafter.  An immigration officer had served the order onto you and explained the order to you through an interpreter on 5 August 2005.  The day after you were deported from Hong Kong to Bangkok. 

4.Immigration records confirmed that in breach of the order and under a different name of Kaewkert Kwanjai, you then entered Hong Kong on nine different dates which are the subject matters of the nine separate charges. 

5.You entered into Hong Kong under that different name in Charge 1 on  2 January 2007, then left Hong Kong on 31 January and on the same day of your departure entered Hong Kong again on 31 January, the subject matter of Charge 2, left Hong Kong on 28 February and entered Hong Kong on the same date, the subject matter of Charge 3.  You stayed until 28 March 2007.

6.Nine months from after your departure in March, you again entered Hong Kong on 23 December 2007, the subject matter of Charge 4.  You then left Hong Kong on 21 January 2008 and re-entered Hong Kong the following day, 22 January 2008, the subject matter of Charge 5.  You then stayed until 17 February 2008. 

7.Eight months after your departure in February, you again entered Hong Kong on 27 October 2010 and that was the subject matter of Charge 6.  You stayed here until 26 November and the following day you re-entered Hong Kong on 27 November 2010 which was the subject matter of Charge 7.  You then departed on 26 December 2010 and it was not until 2 years and 5 months later you re-entered Hong Kong on 25 May 2013, the subject matter of Charge 8.  You then departed from Hong Kong on 21 June, but on the same day of your departure you re-entered Hong Kong which was the subject matter of Charge 9.

8.The period to which these charges apply was over a period of approximately 5 years that is from 2 January 2007 to 21 June 2013.  Over that time you were in Hong Kong for a total of 241 days.

9.Upon arrest and under caution, you stated that you knew you violated your deportation order and you came to Hong Kong to work and earn money.  Jum-Ai was the surname of your father (your maiden name), however you changed the surname to that of your husband after you were married and applied for a new passport after the old one had expired. 

10.Your solicitor, Mr Chan Siu-pan, has mitigated fully and thoroughly on your behalf before me today.

11.You have eight previous convictions arising out of two appearances in court in 2005 and last year.  Seven convictions were for theft in 2005 and on 8 July 2013 you were sentenced to 6 weeks’ imprisonment for the breach of condition of stay.  Resulting from that case whereby you overstayed in Hong Kong under your new name, the subject charges came to light. 

12.I am fully aware of the sentence that you are serving when I am considering the sentence to be imposed upon you in this case.

13.I am informed by Mr Chan that you are 38 years of age.  You were married in Thailand to a Hong Kong resident who is Thai.  You were married in 2006.  Since then you gave birth to two children who are aged 7 and 4.  You have another son who is aged 18.

14.You had on the first occasion in 2007 entered Hong Kong with your 9-month-old daughter to visit your husband and his family.  From then on you believed as Hong Kong was your second home you came in and out of Hong Kong on your new passport with your newly married name.

15.I take into account your strongest mitigating factor, that is, that you have pleaded guilty to these offences.

16.Both the prosecuting counsel, Mr Alex Wong, and your solicitor have referred me to a Court of Appeal case, HKSAR v Joned Asri also known as Tri Wahyu CACC345/2012 which is a judgment dated 17 April 2013 concerning an applicant who had pleaded guilty to 10 charges of breach of a deportation order.  The court in that case after considering various matters held that the total sentence should be that of 33 months’ imprisonment after a plea of guilty.

17.Defendant, I have taken into account what was said by the Chief Judge of the High Court in that case and in adopting those principles and guidance from the terms of imprisonment imposed therein, I sentence you to the following terms of imprisonment.

18.In regard to this offence I should just inform you that you are well aware that these offences are very serious indeed.  An order was made against you. You were informed that you could not enter Hong Kong again.  Despite knowing this, you breached the order and continued to come to Hong Kong on 10 occasions.

19.Defendant, for Charges 1, 2 and 3, I would have taken a starting point of 27 months’ imprisonment had I convicted you after trial. 

20.Nine months after you left Hong Kong on the 3rd charge, you entered Hong Kong again on the 4th charge and stayed for about 2 months.  For those two charges 4 and 5, I would have taken a starting point of 30 months’ imprisonment.

21.Eight months later you entered Hong Kong again, for charges 6 and 7 I would have taken a starting point of 36 months’ imprisonment. 

22.Two years five months later you entered Hong Kong again in Charge 8.  For Charge 8 and 9, I take a starting point of 42 months’ imprisonment.  As is stated in Joned Asri, there is an enhancement in sentence as you have continued to commit the offences in flagrant defiance of the law.

23.Giving you full credit for your plea and reducing those sentences by one-third in, Charges 1 to 3, you should be sentenced to 18 months’ imprisonment.  Charge 4 and 5, 20 months’ imprisonment.  Charge 6 and 7, 24 months’ imprisonment.  Charge 8 and 9, 28 months’ imprisonment. 

24.In sentencing you I must consider the principle of totality.  For these nine offences, defendant, I consider a total term of 30 months to be appropriate.  In arriving at 30 months’ imprisonment, I order Charges 1 to 7 to run concurrent to each other, 8 and 9 to run concurrent to each other and to Charges 1 to 7.  6 months of Charge 8 is to run consecutive to Charges 1 to 7.  That makes a total of 30 months’ imprisonment to which you are so sentenced.