HKSAR v. DEV MANI SUBEDI

HCMA 393/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 393 OF 2010

(ON APPEAL FROM STCC 1695/2010)

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BETWEEN

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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 unlawful remaining in Hong Kong and was sentenced to 14 months’ imprisonment. He now wishes to appeal his sentence.

2.  The Appellant sneaked into Hong Kong on 21 July 2007.   On 4 August 2008 he surrendered himself to the Immigration Department and filed an asylum/torture application.He was detained for 18 days before the granting of an immigration recognizance. Since then, he has been staying in Hong Kong and waiting for the result of his application.

3.  Claiming that his mother was seriously ill back in Nepal, he abandoned his application earlier this year and expressed his wish to return home. I am informed by the prosecution that if the Appellant’s application were successful, he would not be prosecuted for illegal remaining in Hong Kong. The only reason that he is prosecuted is because he abandons his application and has a previous criminal record in Hong Kong thus his case falls within the prosecution policy. But for his criminal record, he would be otherwise repatriated.

4.  In sentencing the Appellant, the Magistrate took into account the 18 days detention and reduced the sentence to one of 14 months’ imprisonment.

5.  In The Queen v So Man King and Others (1989) 1 HKLR 142, it was held that substantial discounts should be given in cases of voluntary surrender and on humanitarian grounds.

6.  The Appellant’s claim for his mother’s ill health is no more than mere assertion. When he came to Hong Kong in 2007, he was fully aware of his mother’s condition. I do not think it is right to reduce his sentence on this basis. There are also doubts as to the genuineness of his asylum application since it was not filed till one year after his unlawful arrival in Hong Kong.

7.  However, it cannot be disputed that he had surrendered himself to the authority albeit for asylum application.  Extra reduction should be given. Few authorities can be found on the length of the reduction. In HKSAR v Tagulao Marcelita A (HCMA 528/2002), the Appellant who was sentenced to 8 months’ imprisonment was given 2 months reduction on appeal for surrendering to the Immigration Service after overstaying 8 years and 3 months.

8.  Having considered all the circumstances, I am of the view that a further 3 months discount can be given. His sentence is reduced therefore into one of 11 months’ imprisonment and his application to appeal against sentence is allowed to that extent.