HKSAR v. Sm Kawsar Ahammed also known as Jaynol Haque, Haque Jaynol, Kaosar Jamir Ahmed, Maksud Shikdar Geme, Kowser Shikder Jimmy and Ahammed Kawsar S M

DCCC 257/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 257 OF 2014

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REASONS FOR SENTENCE

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Introduction

1.The defendant pleads guilty to 3 charges, namely possession of a forged identity card, contrary to s 7A(1) of the Registration of Persons Ordinance, Cap 177 (Charge 1); remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to s 38(1)(b) of the Immigration Ordinance, Cap 115 (Charge 2); and breach of deportation order, contrary to s 43(1)(a) of the Immigration Ordinance (Charge 3).

2.The facts are straight-forward.  During a licence check of a guest house in Shamshuipo, the police found that the defendant was in possession of a forged identity card, the subject matter of Charge 1.  That led further to the revelation that the defendant was the subject of a deportation order issued on 24 August 1995 and that he was last deported to Bangladesh in May 2007.  The defendant admitted to the police that he had sneaked into Hong Kong in March 2008 and had unlawfully remained here ever since. 

Antecedent and criminal records

3.The defendant came from Bangladesh and he received education there up to upper secondary level.  He is now aged 53.  According to Mr Chu for the defence, the defendant was married in 1984 but got divorced in 1992.  He had two children from his former wife.  The son, who is now aged 29, is a teacher and the daughter, who is now aged 21, is a student.  The defendant’s mother, who is now aged 97 and said to be in poor health, is living in Bangladesh with four younger brothers of the defendant.

4.The defendant had been in court on 3 previous occasions in Hong Kong involving a total of 8 convictions, out of which 7 were immigration offences. The first conviction of all was in June 1995 and the offence was making/possessing equipment for the making of a false instrument for which he was sentenced to 8 months’ imprisonment.  The last batch of convictions were in February 2006 including using forged travel document, making false representation to immigration officer and breach of deportation order for which offences he was sentenced to a total of 22 months’ imprisonment.  He was last discharged from prison in April 2007.

5.As aforesaid, the defendant has been the subject of a deportation order which, presumably, was issued after his first conviction in 1995.  Pursuant to that order, he was deported to Dhaka for the first time on 19 September 1995. However, he came back to Hong Kong in defiance of that order and was deported again on 5 August 1997.  Based on what Mr Chu for the defence said in mitigation, the defendant, apparently not deterred at all, soon came back to Hong Kong later that year and was only re-deported on 4 May 2007.  

Mitigation

6.Mr Chu for the defence put forward the following, which he described as “humanitarian grounds”, in mitigation:-

(i) the present predicament of the defendant would have an adverse effect on the health of his mother if she came to know about it;

(ii) the defendant had to divorce his former wife because she had been unfaithful to him and that left him with a deep and lasting sense of shame which caused him to leave his family and his own country; and

(iii) in 2002, the defendant met his present partner or wife, who is a Filipina working as a domestic helper in Hong Kong. A daughter was born out of that relationship and she is now living in the Philippines, being taking care of by the wife’s relatives there. The court was provided with photographs of this new family of the defendant which were said to have been taken in the Philippines. The court was also provided with mitigation letters written by the defendant and his present wife.

7.Lastly, Mr Chu for the defence referred the court to the case of HKSAR v Pham Van Tuan, HCMA 282/2009, which was a magistracy appeal in which Deputy High Court Judge Line (as he then was) said that a combined imprisonment term of 27 months after plea was amply merited for two charges of unlawful remaining and breach of deportation order in relation to a fifth-time repeated offender. 

Sentencing

8.This is the third time that the defendant was found having violated the deportation order against him.  He was last deported in May 2007.  Yet, in March 2008 he sneaked into Hong Kong again.  Before that, he had obtained the forged identity card in the mainland in December 2007.  It is clear that the previous punishment on the defendant had simply failed to deter him from flouting the immigration law of Hong Kong. 

9.I am unable to see how the poor health of the defendant’s mother and his unhappy former marriage could bear on the sentence.  From the facts which the defendant has admitted, it is apparent that he has not spent much time with his mother in Bangladesh ever since 1997.  It is also difficult to reconcile the defendant’s said concern for his mother and his repeated attempts to come to and stay in Hong Kong in knowing violation of the law here.  As regards the defendant’s reasons for his divorce and his leaving his own country, it took place more than 20 years ago.  Furthermore, even assuming that it had been a relevant sentencing consideration before, it certainly cannot be used to reduce the defendant’s culpability now for breaching the deportation order for the third time.  As regards his new family, it would make more sense for the family to settle in either the Philippines or Bangladesh.  This is because neither the defendant nor his wife has the right of abode here and their daughter is now living in the Philippines.  I appreciate that it is natural that the defendant would like to be with his wife here in Hong Kong.  However, the sad reality is that many husbands of foreign domestic helpers in Hong Kong have to live apart from their wives.  Viewing in that light, the situation of the defendant is not so exceptional.  Besides, I cannot ignore the fact that the defendant had already been deported twice from Hong Kong before he formed the relationship with his present wife in 2002.  He knew full well therefore that he was an illegal immigrant who would be sent back if discovered and he should have taken that into consideration before he started that relationship.  In any event, there are clear case authorities to the effect that domestic circumstances do not generally amount to considerations of a humanitarian nature of sufficient weight to justify a departure from the guideline sentences for illegal immigrants.  For example, see HKSAR v Chan Po, CACC 290/1999. 

10.As regards Charge 1, I note that there is no evidence that the defendant had used the forged identity card to obtain employment or other benefit in Hong Kong.  On the other hand, there are no exceptional mitigating factors which justify a departure from the tariff sentence of 12 months’ imprisonment after plea as laid down in HKSAR v Li Chang Li [2005] 1 HKLRD 864.  This is the sentence I pass on this charge.

11.As regards Charge 2, the tariff sentence laid down in R v So Man King & Others [1989] 1 HKLR 142 is one of 15 months’ imprisonment after plea. However, it is also said in that case that the court should take into account, by upward adjustment, any previous unlawful entry.  Besides, I cannot ignore the long period of unlawful remaining by the defendant here, which lasted for almost seven years, between March 2007 (when he sneaked into Hong Kong) and 8 February 2014 (when he was arrested).  I bear in mind that the maximum sentence for this offence is one of 3 years’ imprisonment.  Taking into account the aggravating factors present in this case, the sentence on this charge is 18 months’ imprisonment. 

12.As regards Charge 3, whilst there is no tariff sentence as such, it has been said that it is a more serious offence that unlawful remaining: see HKSAR v Nguyen Chi Trung, HCMA 1095/2001 and HKSAR v Cortex Emily Bisoy [2002] 2 HKLRD 762.  Generally, for a first such offence, the starting point after trial which has been adopted is one of 27 months’ imprisonment: see HKSAR v Ta Dinh Son, also known as Bui Trong Khoai and Ngo Van Thanh, CACC 348/2013.  As aforesaid, this is the third time that the defendant was found in breach of the deportation order.  Having considered the judgments of the Court of Appeal in HKSAR v Tran Viet Thanh [2012] 1 HKLRD 903; and HKSAR v Bui Van Khai [2013] 2 HKLRD 471, the sentence on this charge after trial is one of 36 months’ imprisonment which is reduced to 24 months for the plea of guilty. 

13.As regards totality, in R v So Man King followed in HKSAR v Tran Viet Thanh,it has been said that a concurrent sentence was appropriate for a forged identity card offence and unlawfully remaining in Hong Kong save in exceptional circumstances.  Also, in HKSAR v Bui Van Khai and HKSAR v Ta Dinh Son, it has been said that the sentences imposed on unlawful remaining and breach of deportation order should be ordered to run concurrently, as the former does not add to the culpability constituted by the latter.  In view of the case authorities, I order the sentences on all charges to run concurrently.  Thus, the defendant is sentenced to a total imprisonment term of 24 months.

Please refer to CACC282/2014 for the relevant appeal(s) to the Court of Appeal.