HKSAR v. SULTAN AFSAR

HCMA 598/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 598 OF 2002

(ON APPEAL FROM KTCC 1372/2002)

____________________

____________________

________________

JUDGMENT

________________

1. This appellant was convicted on 9 May on his pleas of guilty before Mr Poon, sitting at the Kwun Tong Magistrates Court. He faced three charges: firstly, making a false representation to an Immigration officer the allegation being that he presented himself on entry at the airport with a passport in the name of Afsar Sultan which was not a passport to which he was entitled because that was not his name; secondly, a charge of obstructing an Immigration officer, the allegation being that he told the officer that his name was Afsar Sultan and it was not; and lastly, an offence of being in breach of a deportation order, he having been deported under an order dated 9 September 1997 which was to the effect that he was to leave Hong Kong and never to return. Having pleaded guilty, he was sentenced to terms of imprisonment totalling 17 months. From those sentences he now appeals to this court.

2. He has two previous convictions, firstly in December 1993 for breach of a condition of stay when a term of 3 months' imprisonment was imposed, suspended, and he was fined $400. Then in June 1997, again immigration offences - breach of condition of stay and a more serious offence of making a false representation to an Immigration officer which resulted in a total of 7 months' imprisonment and the deportation order to which I have referred.

3. In mitigation, it had been submitted to the Magistrate that he had come to Hong Kong in order to improve his financial position, to assist his family and, in particular, that he now needed to return to his native Pakistan because his mother needed a surgical procedure, a cardiac catheterisation, or an angioplasty as it is also called, and that she was declining to undergo this urgent procedure unless her son was present during the operation.

4. The learned magistrate was well aware of that and in fact he was invited to reconsider his sentence when an application was made to him for a review of his sentence and all these matters were then placed before him. It is most unfortunate that the defendant's mother apparently declines to undergo what is, relatively speaking, a straightforward surgical procedure in his absence but, I am afraid, that must be a matter which is entirely for her to decide and it cannot begin to influence the outcome of this appeal.

5. The 1st and 3rd charges, in particular, are serious matters. They are viewed with great anxiety by the courts and the authorities make it absolutely clear that if a person presents a false passport to an Immigration officer, the usual starting point for sentence is one of 18 months' imprisonment. The magistrate applied all the correct principles. He was alive to the appropriate authorities which he needed to have regard to in sentencing this appellant. He gave appropriate credit for the appellant's pleas of guilty and he made all the correct adjustments to have regard to the principle on totality of sentence.

6. These sentences are unassailable and, accordingly, this appeal must stand dismissed.