HKSAR v. Rahaman Muzibur also known as Fazlu Rahaman and Rahaman Fazlu

DCCC 793/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 793 OF 2014

---------------------

---------------------

--------------------------------------

REASONS FOR SENTENCE

--------------------------------------

Introduction

1.The defendant pleads guilty to six charges of breach of deportation order, contrary to s 43(1)(a) of the Immigration Ordinance, Cap 115. 

Facts

2.Shortly stated, the defendant was arrested by the police for having acted furtively near Chung King Mansion on 19 February 2014 and failing to produce any proof of identity.  Subsequently, the defendant through the help of a friend produced to the Police an Indian Passport bearing the name “Rahaman Muzibur”.  Upon further enquiry, however, it was found that the defendant had previously assumed another name “Rahaman Fazlu” in Hong Kong and was the subject of a deportation order executed on 24 September 2012.  Despite the defendant’s knowledge of the deportation order against him, he persisted in entering and staying in Hong Kong by means of the aforesaid Indian passport on six occasions between 27 April 2013 and 22 August 2013. 

Antecedent

3.The defendant is aged 26 years.  He has 3 previous convictions here, namely criminal damage (September 2011), possession of false instruments and breach of condition of stay (June 2012).

4.By way of family background, I am told that the defendant’s mother, 3 brothers and 4 sisters are living in India and the defendant is the youngest among his siblings. 

Mitigation

5.Mr Fung, who mitigates on the defendant’s behalf, realistically accepts that the strongest mitigating factor is the defendant’s plea of guilty for which a one-third discount will be given.

Sentence

6.The maximum sentence for the offence of breach of deportation order is 7 years’ imprisonment on conviction on indictment.  Whilst there is no tariff sentence laid down by the Court of Appeal for this offence, 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. 

7.In the present case, there is no evidence that the Indian passport was false. On the other hand, the defendant had repeatedly violated the immigration law in Hong Kong.  Although this is the first time that he got caught for breach of the deportation order, he cannot be described as a first time offender.   In view of HKSAR v Joned Asri, also known as Tri Wahyu (CACC 345/2012), it is possible to increase the starting point for the subsequent breaches of the deportation order committed after the first breach. Furthermore, as the defendant had committed a total of 6 separate and distinct offences, subject to the principle of totality there should be additional penalty for each of the additional offences he committed after the first one. 

8.For the sake of simplicity, I adopt 27 months’ imprisonment as the starting point of each of the charges.  I also order that one month from each of the sentences on Charges 2 to 6 is to run consecutively to each other and to the sentence on Charge 1.  Thus, the total sentence of the defendant is (18+1+1+1+1+1=) 23 months’ imprisonment.   

9.The defendant is warned now that should he commit similar offences in the future, he would expect a higher starting point for sentence than the one adopted in the present case.