HKSAR v. S M KAWSAR AHAMMED also known as JAYNOL HAQUE, HAQUE JAYNOL, KAOSAR JAMIR AHMED,MAKSUD SHIKDAR GEME

CAC C 282/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 282 OF 2014

(ON APPEAL FROM DCCC NO. 257 OF 2014)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  The appellant (SM Kawsar Ahammed) pleaded guilty to a charge of possession of a forged identity card, a charge of remaining in Hong Kong without authority and a charge of breach of a deportation order.  He was sentenced to a total term of 24 months’ imprisonment.  With leave granted by a single judge of the Court of Appeal, the appellant appeals against sentence out of time.

The Facts

2.  During a license check of a Shamshuipo guest house on 8 February 2014, the appellant was arrested by the police.  He was found to be in possession of a forged Hong Kong identity card.  The appellant had no right to remain in Hong Kong and was in fact deported from Hong Kong in 2007.  The appellant admitted to have sneaked into Hong Kong in March 2008 and had remained in Hong Kong illegally until he was arrested in February 2014.

3.  The appellant had eight previous convictions, including seven immigration offences.  Of the seven immigration offences, two of them were breach of deportation orders.  Obviously, the appellant had repeatedly come to Hong Kong illegally and had remained in Hong Kong for a significant period of time.  He was subjected to a deportation order issued on 24 August 1995 and was last deported to Bangladesh on 4 May 2007.  He was prohibited to enter Hong Kong at any time thereafter and he broke the order by illegally entering Hong Kong in 2008.

4.  There is no suggestion that the sentences, either individual or collectively, are manifestly excessive. Indeed, the 12 months’ sentence on charge 1 for possession of a forged identity card, the 18 months’ sentence on charge 2 of unlawfully remaining in Hong Kong for 7 years and the 36 months’ sentence on charge 3 for breach of deportation order are well within the sentencing guidelines laid down in leading authorities.

5.  The only ground advanced by the appellant which was accepted by the single judge to be worthy of consideration by the Full Bench of the Court of Appeal is humanitarian in nature.

The appellant’s background

6.  The appellant is aged 54.  He was married in 1984 but divorced in 1992.  The appellant has two adult children by his first marriage.  According to the appellant, his two adult children are now both gainfully employed and one is soon to become a lawyer.  The appellant said in 2002 he met his 2^nd wife who was a Filipina domestic helper working in Hong Kong and they have a daughter.  The daughter is now living in the Philippines, being taken care of by relatives.

7.  The appellant’s wife passed away after a prolonged period of illness.  The appellant says he has a 97 year-old mother now living in Bangladesh and she is in poor health.  The appellant also says he left Bangladesh because his former wife was unfaithful to him, thus left him with a deep and lasting sense of sham.  He says he came to Hong Kong out of desperation and now regrets what he did.

8.  The appellant emphasizes that he needs to look after his 10 year-old daughter who is now being taken care of by his sister-in-law in the Philippines.  He says his daughter misses him and questions his whereabouts.  The appellant asks for a reduction of sentence so that he can return to his daughter as soon as possible.

Discussion

9.  The appellant’s mother is aged 97 and the appellant has been away from her for a prolonged period of time.  The appellant chose to come to Hong Kong illegally, leaving his mother behind in Bangladesh.  The condition of the appellant’s mother is not a valid reason for a reduction in sentence nor is his poor relationship with his first wife.

10.  What slightly concerns us is the fact that the appellant’s wife passed away because of cancer on 17 September 2014 after his arrest in February 2014 and his sentence in May 2014.

11.  If the trial judge were aware of the sudden demise of the appellant’s wife, leaving behind a 10 year-old daughter without a parent to look after, he might well be persuaded to extend some degree of leniency to the appellant.

12.  It is for that reason and for that reason alone that we are persuaded to afford the appellant a slight reduction in sentence of three months, purely on humanitarian ground.

13.  We allow the appellant’s appeal and reduce the sentence on charge 3 from 24 months to 21 months’ imprisonment, but confirm the other sentences and orders.  The total sentence on the appellant is reduced from 24 months to 21 months’ imprisonment.