HKSAR v. MOHAMMAD, FAISAL AHMAD

HCMA 223/2025

[2025] HKCFI 5234

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 223 OF 2025

(ON APPEAL FROM STCC 390 OF 2025)

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BETWEEN

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J U D G M E N T

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1.  The Appellant was convicted after trial for one count of “taking employment while being a person in respect of whom a removal order is enforced”, contrary to section 38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap. 115.

2.  The facts were that on 22 January 2025, at around 2000 hours, the Appellant worked as a food delivery worker by delivering a Keeta food delivery from a noodles restaurant in Jordan to a premises. The Appellant was observed and followed by a plainclothes immigration officer who gave evidence against him at trial.

3.  The Appellant was a recognizance holder and was subject to a removal order at the material time. The Appellant had a clear record. In mitigation, it was submitted that he had been remanded since January 2025.

Reasons for Sentence

4.  The Magistrate applied the Court of Appeal case in HKSAR v Usman Butt [2010] 5 HKLRD 452, where the guideline was that a sentence of 15 months’ imprisonment is appropriate for this charge upon a guilty plea. Thus the sentence for conviction after trial should be 22.5 months.

5.  The same has been applied in subsequent cases such as HKSAR v Sohail HCMA 505/2019, and HKSAR v Salim HCMA 466/2019. The Magistrate considered that there was nothing exceptional in respect of the Appellant’s background to depart from the guidelines as stated above in Usman Butt, therefore the Appellant was sentenced to 22 months and 2 weeks’ imprisonment.

Grounds of Appeal

6.  The Appellant appeals against sentence but did not provide any further grounds or written submissions in support. The only general ground was that the sentence was too severe.

Respondent’s Reply

7.  The Respondent stated that for the present offence, the maximum sentence is 3 years’ imprisonment. The Court of Appeal has already laid down the sentencing guideline. The appropriate sentence is 15 months’ imprisonment after a guilty plea. So the starting point for this offence would be 22.5 months’ imprisonment after trial, as stated in Usman Butt stated above.

8.  The Magistrate highlighted the correct sentencing guideline for this offence. The Appellant was convicted after trial. So the sentence imposed was 22.5 months, and there was no good reason to depart from the above sentencing guideline.

9.  The sentence is not manifestly excessive nor wrong in principle, so the court should dismiss the Appellant’s appeal against sentence.

Consideration

10.  In the Court of Final Appeal case HKSAR v Hui Lai Ki [2024] HKCFA 7, it was stated that the Magistracy Appeal is conducted by way of rehearing. On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which satisfies appellate intervention to reverse the decision of the magistrate.

11.  For sentencing appeal, the Court also has to consider the relevant facts, mitigation, and sentencing authorities. For the present offence of taking employment while being a person in respect of whom a removal order is enforced, the Court of Appeal has already laid down the guideline, as in Usman Butt stated above, that the appropriate sentence is 15 months’ imprisonment after guilty plea. However, the Appellant was found as a food delivery worker which he was still a recognizance holder not permitted to work and also subject to a removal order. Therefore, for conviction after trial, the Magistrate correctly imposed 22 months and 2 weeks’ imprisonment.

12.  There is no exceptional circumstances for any further discount in this case. So for rehearing, I also consider the sentence imposed by the Magistrate appropriate and not excessive. Therefore the appeal against sentence is dismissed accordingly.