HKSAR v. YOUNAS MUHAMMAD

HCMA 786/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 786 OF 2011

(ON APPEAL FROM STCC 4531/2011)

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BETWEEN

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JUDGMENT

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1.  The Appellant was found guilty, upon his guilty plea, of one charge of 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)(b) and 38AA(2) of the Immigration Ordinance, Cap. 115. The Magistrate sentenced him to an imprisonment term of 12 months. He now appeals against the sentence imposed on him.

Facts of the case

2.  During a joint-departmental operation conducted on 27 September 2011 at an industrial building in Kwai Chung, the Appellant was observed to be holding a spade and mixing sand and cement inside a flat of that building.  He was in possession of a Recognizance Form.  Under caution, he admitted being employed as an odd job worker responsible for shoveling and mixing sand at the place he was arrested.  He worked from 11 a.m. to the evening, earning a daily wage of $400.

3.  Further investigation revealed that on 18 June 2006 the Appellant sneaked into Hong Kong by boat from the mainland.  Having landed in Hong Kong unlawfully, he remained here without the authority of the Director of Immigration.  He was arrested on 13 December 2006 and subsequently, on 25 January 2007 released on recognizance.

The sentence

4.  In sentencing, the Magistrate noted the followings :

(1)  The Appellant was a torture claimant and his claim had been lodged for 2-3 years, yet the outcome was still pending up to the time of sentence.

(2)  He had an accidental fall last year which resulted in injury to his left leg.

(3)  He had been relying on financial support of his friends.

(4)  His 70 year old mother (who has a heart problem), his wife and 2 children aged 9 and 11 respectively are all in Pakistan.

(5)  He had been detained for 44 days before he was released on a recognizance on 25 January 2007.

(6)  He pleaded guilty to the offence and he is remorseful.

5.  The Magistrate followed the case of HKSAR v Usman Butt & Another HCMA 70 of 2010 in which the Court of Appeal held that an imprisonment term of 15 months is appropriate in a case of conviction upon guilty plea of this nature of offence.    

6.  He imposed the ultimate sentence of 12 months and gave the following reasons :

“(a) First and foremost, a sentence of 15 months is called for.

(b) The Appellant’s plea of guilty and his clear record would not attract any discount in sentence according to the Usman Butt’s case.

(c) The fact that the Appellant’s family in Pakistan may need his support is not humanitarian reason to depart from the tariff of 15 months imprisonment. In fact, it was the Appellant who wanted to stay in Hong Kong in the first place. Therefore, the suggestion that after the commission of the present offence his support suddenly became necessary for his family is not reasonable and should not be given any weight.

(d) The Appellant has been detained for 44 days prior to his release.

In normal circumstances, the Appellant’s sentence should be 15 months minus 44 days.  At the end, I gave the appellant 3 months discount by applying the principles laid down in the Usman Butt’s case.”

Grounds of Appeal

7.  At the appeal hearing, the Appellant appeared in person.  The grounds he put forward may be summarized as follows :

1.  The sentence is too severe.

2.  He was cheated to come to Hong Kong.  He had paid a lot of money to the person who said valid visa for job could be arranged for him.

3.  He wishes to go back to Pakistan as soon as possible and a friend had provided him the money to purchase the flight ticket.

4.  He had suffered physical injury from a fall and is still undergoing medical treatment.

5.  His mother has heart problem for 3 years and he is eager to return to Pakistan to take care of her.

Consideration

8.  In all the circumstances of the case, I do not see there are in existence any grounds which justify a departure from the sentencing consideration as set out in HKSAR v Usman Butt & Another. I agree entirely with the Magistrate that since the Appellant had pleaded guilty, a sentence of 15 months’ imprisonment is appropriate.

9.  The Magistrate had fairly and indeed generously made the deduction of 3 months to take into account the 44 days which the Appellant had spent in detention and which would not be taken into account when the Correctional Services Department is to determine the length of custody pursuant to the present sentence.

10.  The Magistrate has given sound reasons for not giving the Appellant any further discount.

11.  In all the circumstances, I see no sufficient grounds to interfere with the sentence.  The matters which the Appellant said do not justify any further discount.  The discount given to him is already a generous one.  In my judgment, the sentence imposed is neither wrong in principle nor manifestly excessive.

Conclusion

12.  The appeal against sentence is dismissed.  The original sentence of 12 months’ imprisonment stands.