HKSAR v. MOBEEN QURESHI

DCCC 243/2018

[2018] HKDC 1406

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 243 OF 2018

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

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

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

REASONS FOR SENTENCE

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

1.  The defendant pleaded not guilty to one count of “theft”, contrary to section 9 of the Theft Ordinance, Cap 210 (charge 1) but guilty to one count of “breach of deportation order”, contrary to section 43(1)(a) of the Immigration Ordinance, Cap 115 (charge 2) and one count of “remaining in Hong Kong without authority of the Director of Immigration after having landed unlawfully in Hong Kong”, contrary to section 38(1)(b) of the Immigration Ordinance (charge 3). Upon the prosecution’s application, charge 1 is to be left on court file and not to be proceeded with without the court’s leave.

Facts

2.  On 13 January 2018, the defendant was seen wandering in Central.  He was intercepted and was unable to produce any proof of identity.

3.  In subsequent video-recorded interview, the defendant admitted under caution that he came from Pakistan and had been in Hong Kong for 11 months.  He came to Hong Kong illegally by ferry from Shenzhen.  He came to Hong Kong to seek asylum. 

4.  Investigation revealed that the defendant is subject to a deportation order dated 27 July 1995 and he understood the order.  He had been deported on 30 September 1995, 8 November 1997, 23 September 2000 and 30 December 2011.

Mitigation

5.  The defendant is aged 50.  He previously worked as a reporter in Pakistan.  He came to Hong Kong to seek asylum as he was attacked after he published articles revealing corruption of politicians in Pakistan.  He recently married a Taiwanese lady and planned to move to Taiwan.  The defendant has 16 previous conviction records, 3 relate to breach of deportation order and 1 relates to unlawful remaining in Hong Kong.

6.  In mitigation, it was submitted that he last committed a similar offence in 2009 and the court was urged to take into account the totality principle and impose concurrent sentences on the 2 charges.

Sentence

7.  The maximum sentence for charge 2 is 7 years’ imprisonment.  For charge 3, the maximum sentence is a fine of HK$25,000 and 3 years’ imprisonment. 

8.  For charge 2, the usual starting point after trial is 27 months’ imprisonment (see HKSAR v Ta Dinh Son, CACC 348/2013).  The sentence can be adjusted upward in case of a repeated offender.  For the second to seventh commission of this offence, the starting point ranges from 30 to 42 months’ imprisonment (see HKSAR v Jones Asri, CACC 345/2012 and HKSAR v Ta Dinh Son, CACC 348/2013).

9.  For charge 3, the usual sentence after plea for a first offender is 15 months’ imprisonment.  Again, the sentence can be adjusted upward in case of a repeated offender.  The starting point after trial can range from 27 to 30 months (see HKSAR v Bui Van Khai, CACC 175/2012 HKSAR v Pham Van Hung, CACC 14/2011 and HKSAR v Ta Dinh Son, CACC 348/2013).

10.  Further, according to the Court of Appeal’s guideline, the sentences for the two charges should run concurrently.

11.  In respect of charge 2, since it is the defendant’s 4^th conviction, I adopt a starting point of 3 years’ imprisonment.  He is entitled to the usual one-third discount for his guilty plea.  The sentence is therefore reduced to 2 years’ imprisonment.

12.  For charge 3, although it is the defendant’s 2^nd conviction, I consider a starting point of 22.5 months is appropriate.  The sentence is reduced to 15 months for the defendant’s guilty plea.

13.  Apart from the guilty plea, I do not see other valid mitigating factor justifying further reduction of sentence. 

14.  I order the sentences for the two charges to run concurrently and hereby sentence the defendant to a total sentence of 2 years’ imprisonment.