HKSAR v. HUSSAIN, ASHFAQ

HCMA 392/2025

[2026] HKCFI 5090

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 392 OF 2025

(ON APPEAL FROM STCC 1385/2025)

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J U D G M E N T

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1.  The appellant pleaded guilty to one count of breach of deportation order[1]. He was sentenced to 22 months’ imprisonment.

2.  The appellant now appeals against sentence.

Facts

3.  The facts admitted by the appellant show that a deportation order for life was issued against the appellant on 22 November 1996.  The said order was served on the appellant on 22 March 1997 and he was deported to Pakistan on the same day. 

4.  On 16 June 1998, the appellant was arrested.  He was subsequently charged with and convicted of the offence of breach of deportation order and other offences.  After legal proceedings, he was deported to Pakistan on 24 April 1999.  

5.  On 12 January 2015, the appellant surrendered to the Immigration Department for having sneaked into Hong Kong.  In a cautioned interview, the appellant admitted that he sneaked into Hong Kong on 16 March 2006 and that he was aware that he was the subject of the deportation order.  He surrendered to the Immigration Department and applied for non-refoulement claim.

Mitigation

6.  It was submitted in mitigation that the appellant was aged 50, his mother and his daughter lived in Pakistan.  He was not in good health and he worried about his personal safety and that was why he came to Hong Kong.  He has 7 previous conviction records, one of which is for breach of deportation order.  The strongest mitigation is his guilty plea.

Sentence

7.  The magistrate stated that there was no sentencing guideline for the offence of breach of deportation order.  The maximum sentence on summary conviction is 3 years’ imprisonment.  Having considered the relevant passage of Sentencing in Hong Kong, some authorities[2] and taking into consideration that it was the appellant’s second conviction for breach of deportation order, the magistrate adopted a starting point of 33 months’ imprisonment and reduced it to 22 months’ imprisonment for the guilty plea.  The magistrate stated that there was no other valid mitigation justifying further reduction in sentence.  He therefore sentenced the appellant to 22 months’ imprisonment[3].

Grounds of appeal

8.  In the notice of appeal, the appellant relied on the general ground that his sentence was too severe.  In his written grounds of appeal dated 16 January 2026, the appellant stated that the magistrate failed to give credit for his voluntary surrender and failed to adopt a lower starting point having regarding to the long interval between breaches and his voluntary surrender.  At the appeal hearing, the appellant stated that while he was in jail, his parents passed away and his wife had a stroke.  He wished his sentence could be reduced.

Consideration

9.  The Court of Final Appeal in HKSAR v Hui Lai Ki (許麗琪) (2024) 27 HKCFAR 265 held that magistracy appeal is conducted by way of rehearing on the evidence before the trial court, supplemented by such further evidence as the intermediate appellate court may admit within its statutory power.  On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies appellate intervention to reverse the decision of the magistrate.  On an appeal against sentence, the intermediate appellate court should consider all the facts, mitigation and relevant authorities.

10.  In HKSAR v Joned Asri also known as Tri Wahyu CACC 345/ 2012, the Court of Appeal had set out the sentencing principles for the offence of breach of deportation order.  In that case, a starting point of 30 months’ imprisonment was adopted as the starting point for second and third breaches of deportation order.  It also stated that the shorter the interval between the successive breaches, the more serious an aggravating factor it was.  I agree with the respondent that the longer interval between successive breaches does not automatically qualify as mitigating factor.

11.  I am of the view that reference should be made to Joned Asri when deciding on the appropriate starting point of the offence.  In Joned Asri, it was held that the appropriate starting point for a second breach was 30 months’ imprisonment.  Given it is the appellant’s second conviction and the interval between the two breaches is around 7 years, I find the starting point of 33 months adopted by the magistrate is on the high side.

12.  It is well established that voluntary surrender is a valid mitigating factor.  As the appellant surrendered himself solely for the purpose of filing a non-refoulement claim, I agree with the magistrate that this does not qualify for a reduction in sentence.  At the appeal hearing, the appellant mentioned about ill health of his wife.  Family hardship is usually not a valid mitigating factor.  The only mitigation in this case is the appellant’s guilty plea.

13.  On rehearing, having considered the facts of the case and the appellant’s mitigation, I find the starting point to be on the high side but not manifestly excessive.  In the circumstances, the sentence imposed by the magistrate is not manifestly excessive or wrong in principle.  The appellant’s appeal against sentence is dismissed.

[1] Contrary to section 43(1)(a) of the Immigration Ordinance, Cap. 115

[2] HKSAR v Nguyen Tuan Anh HCMA 1091/2003, HKSAR v Bui Van Khai CACC 175/2012 and HKSAR v Nguyen Thi Thuoc DCCC 143/2014

[3] Paragraphs 8-12 of Reasons for Sentence