HKSAR v. PARVEEN KUMAR

HCMA 553/2018

[2019] HKCFI 352

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 553 OF 2018

(ON APPEAL FROM STCC NO 39 OF 2018)

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J U D G M E N T

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1.  The appellant faced two charges: 1st charge, taking employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully, contrary to sections 38AA(1)(a) and 38AA(2) of the Immigration Ordinance; 2nd charge, remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance. 

2.  The appellant pleaded not guilty and was convicted after trial of the 1st charge.  He was sentenced to 22 months and 2 weeks’ imprisonment.  No plea had been taken on the 2nd charge, and it was withdrawn after sentence of the 1st charge.

3.  The appellant filed a notice of appeal to a judge against sentence, Form 102.  At trial, the appellant was represented by a barrister assigned by the Duty Lawyer Service Scheme.  In the appeal proceedings, the appellant is unrepresented.  

The Prosecution Case

4.  The appellant had been remaining in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully.  He was arrested on 29 March 2015.  On 24 April 2015, a recognisance form was issued to the appellant, and during the recognisance period, he was prohibited from taking up any employment, whether paid or unpaid.

5.  The facts found by the trial magistrate are set out in paragraphs 2 to 4 of the Magistrate’s Reasons for Sentence.  I quote the most relevant parts:

“3.  In summary, the facts found by me after trial were that at about 0229 am on 13 October 2017, PC22453 was on duty in plainclothes and saw the defendant, who was alone inside the store, tidying up some foam boxes, cutting open some adhesive tapes of the foam boxes with a cutter and tidying up and putting goods, ie carrots, on the shelf. Having observed the defendant for about two minutes, he intercepted the defendant. D produced his recognisance form to PC22453 and was subsequently arrested for the present case. After the said arrest, PC23589 attended the scene, drew a sketch of the scene and took photographs thereat.

4.  I found that the defendant was doing the work as observed by PC22453 in the course of employment and for the purpose of employment.”

The Appellant’s Background and Mitigation

6.  The Magistrate called for a background report of the appellant.  The Magistrate set out in her reasons for sentence that:

(a)  The appellant had a clear record.

(b)  The appellant is 21 years old and single.

(c)  He had a girlfriend in India.  He made her pregnant when she was 19 years old.  He wanted to marry her.  However, as his girlfriend’s family was more wealthy than his, they refused the proposal.  Furthermore, they assaulted him and his parents.  The appellant then left with his girlfriend to another village. However, his girlfriend’s parents wanted to kill him.  He therefore left India and also had to leave his girlfriend.

(d)  He came to Hong Kong via the mainland.  He was arrested by the police on 29 March 2015.  On 24 April 2015, the appellant was released on recognisance after being detained for 27 days.

7.  The Magistrate followed the tariff sentence laid down in the case of HKSAR v Usman Butt [1]. She did not find the young age of the appellant a justification to depart from the usual sentence.  She saw no reasons to depart from the usual tariff.  She therefore passed a sentence of 22 months and 2 weeks’ imprisonment on the appellant.

8.  The Magistrate noted in her Reasons for Sentence that the appellant had been detained for 27 days as administrative detention, but the defence made no mention of the detention in the mitigation for the appellant.  The Magistrate remarked that even if the administrative detention had been raised in mitigation, she would not have exercised her discretion to deduct the period from the sentence as the said detention had nothing to do with the present offence which concerned his taking employment while remaining in Hong Kong unlawfully.  The Magistrate found the period spent in detention not connected with the present offence and it took place long before the present case.

9.  The appellant’s grounds of appeal is as in Form 102: “And the general grounds of my appeal are that my sentence was too severe”.  In today’s hearing, the appellant says he did not take up employment.  He was just standing, waiting for the bus.  He asks for a lesser sentence.

Consideration

10.  In respect of the conviction, the appellant has not filed any appeal against conviction.  Whether he was properly convicted is not a matter that I can deal with in this appeal against sentence. 

11.  In respect of the sentence, the Magistrate has properly referred to the guideline case in HKSAR v Usman Butt.  In that case, the Court of Appeal has fixed a tariff of 15 months’ imprisonment after a plea of guilty in the first instance.  This would work out a sentence of 22½ months’ imprisonment after trial. 

12.  The Magistrate properly followed the guideline.  I agree with the Magistrate that the age of the appellant is not in the category of extreme youth.  There is insufficient basis to say that there is any strong humanitarian ground or any other reasons to justify a departure from the usual sentence.

13.  In respect of the 27 days of detention of the appellant, it appears that it might not have come to the attention of the Magistrate when she passed the sentence.  It was not put up as a mitigation.  In any event, the Magistrate raised this matter at her Reasons for Sentence.  She indicated that she would not have exercised her discretion to reduce the appellant’s sentence on the basis of his 27 days of detention had it been put forward in mitigation.

14.  I should stress that the discount for the period of administrative detention from the sentence is not an entitlement but a discretion which can be exercised by the Magistrate. See HKSAR v Eftakhar Beg [2]. The detention took place long ago in 2015, and it was not in connection with the offence for which the appellant was sentenced in this case.  I agree with the Magistrate that discretion should not be exercised to deduct the period of detention in the circumstances of this case.

The Result

15.  The sentence is proper and appropriate.  The appellant’s appeal against sentence is dismissed.