HKSAR v. ANWAR KASHIF

HCMA 970/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 970 OF 2009

(ON APPEAL FROM STCC 6664/2009)

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J U D G M E N T

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1.  The Appellant, who is a Pakistani national, was convicted on his own plea in the Magistracy of one count of “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, Cap. 115.  He was sentenced to 14 months’ imprisonment.  Thereafter he applied for a review of that sentence, but the application was dismissed.  He appealed against sentence only.

2.  The facts were that the Appellant had admitted sneaking into Hong Kong from Shenzhen by boat on 5 July 2007.  He remained thereafter in Hong Kong without any authority from the Director of Immigration until he was intercepted by the police on 21 February 2008.  He was released on an immigration recognizance on 12 March 2008, after having filed a claim with the UNHCR as a torture claimant.

3.  On 8 August 2009 while still on that recognizance, he was arrested by the police and charged with one count of Indecent Assault.  He was convicted of that offence and on 7 September 2009 was sentenced to 3 weeks’ imprisonment.

4.  On 28 September 2009 the Appellant withdrew his torture claim.  On 11 November 2009 he was charged with the present offence to which he pleaded guilty, choosing to represent himself before the Magistrate.

5.  In mitigation the Appellant claimed that he had come to Hong Kong because his life was in danger in Pakistan; that he had not worked illegally whilst in Hong Kong and he told the Magistrate that he had withdrawn his torture claim.

6.  The Magistrate was aware that the usual sentence for this offence was 15 months’ imprisonment [see R v So Man-King & Others [1989] 1 HKLB 142], but sentenced the Appellant to 14 months’ imprisonment to take into account the time that he had served in respect of the Indecent Assault conviction.

7.  On 20 November 2009 the Appellant applied to review the Magistrate’s sentence.  He told the Magistrate that his mother was very ill in Pakistan and that he himself was undergoing psychiatric treatment in Hong Kong because of that.  He claimed that he had bought his own air ticket and wished to go home.  He complained to the Magistrate because he had been charged with this offence instead of being sent back to Pakistan straight away.

8.  The Magistrate explained, as indeed he had on the occasion of the plea, that it was immigration policy not to charge illegal immigrants if they had a clear record but to repatriate them.  As he had a prior conviction, he had been charged with the present offence.  The Magistrate did not find any grounds to justify a review of the sentence and ordered the sentence of 14 months to stand.

9.  The Appellant relied on the same grounds in support of his appeal.  He said he should be sent back to his own country because his mother was ill and he was receiving mental treatment in Hong Kong.  He produced a number of medical certificates from the Kowloon Hospital, Department of Psychiatry, which effectively covered the period from 28 August 2009 to 28 January 2010.  He advised the court that he has a further appointment on 25 March 2010, (although that was not recorded on the latest certificate).  The certificates are not particularly helpful, they merely state in each case that he is suffering from “acute psychosis” without giving any details, and the certificates do not give details of any sick leave being required, or any follow-up treatment being given.  The Appellant confirmed that he had withdrawn his torture claim and had applied to go back to Pakistan.  He complained again about the policy adopted by the Immigration Department in respect of the charging.

10.  This to my mind is an unmeritorious appeal.  The Appellant was fortunate in being given a discount on the usual sentence because of the time that he had served in prison for the Indecent Assault.  If the two offences had been dealt with together, the Magistrate would have been justified in making the sentences wholly consecutive.  The guideline 15 months’ sentence in So Man-king already takes into account a discount for a plea of guilty.

11.  I note too that the Appellant remained in Hong Kong from July 2007 until 21 February 2008 when he was intercepted by the police.  During that time he had not seen fit to seek asylum or make any complaints of torture to the UNHCR, the immigration authorities, or the police.  He followed what appears to be now a standard practice of filing a torture claim only after being arrested.  The likelihood that this claim was a tactical ploy to ensure that he remained at liberty in Hong Kong, gains some support from his withdrawal of the claim in September 2009, when he thought he had a chance of being repatriated to Pakistan.

12.  There was no support advanced for the Appellant’s claim about his mother’s health.

13.  The Appellant had not established strong humanitarian considerations which would enable this court to interfere with what is a proper sentence.  I note that he is receiving treatment for his psychiatric problem and that treatment will continue, as necessary, while he is in CSD custody.  This case came within the parameters of the standard prosecution policy relating to illegal immigrants.  There is no support for the complaint that the Appellant was charged unfairly.  Nor is there anything which suggested that the sentence was manifestly excessive or in any way wrong in principle.  Accordingly, this appeal against sentence is dismissed.