HKSAR v. IKRAM, MUHAMMAD

HCMA 215/2023

[2023] HKCFI 2999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 215 OF 2023

(ON APPEAL FROM STCC 549/2023)

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J U D G M E N T

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1.  The appellant was convicted of an offence of “taking employment while being a person in respect of whom a removal order is in force”, contrary to section 38AA (1)(b) and 38AA (2) of the Immigration Ordinance, Cap 115, Laws of Hong Kong. He was sentenced to a 16-month term of imprisonment.

2.  The appellant now appeals against his sentence.  He was represented by the duty lawyer scheme in the court below but unrepresented in this appeal.

The Facts

3.  The appellant admitted working in a residential flat in Wong Tai Sin at around 11am on 15 February 2023.  He was observed by police officers wearing gloves and goggles whilst demolishing the wall of a kitchen with a corded demolition breaker.  He was intercepted and upon a check of his identity documents it was revealed he was a recognizance form holder.

4.  The appellant admitted he was taking employment whilst being a person in respect of whom a deportation order is in force.  He entered Hong Kong illegally many years ago and a deportation order for life was issued against him on 7 October 2021 and served on him on 21 October 2021.  It was made known to him that he was prohibited from taking up any employment in Hong Kong, whether paid or unpaid.  That deportation order remained in force on the material day.

The Appellant’s Background

5.  After the appellant’s plea and conviction, duty lawyer mitigated on his behalf.  The appellant is 51 years old and arrived from Pakistan in Hong Kong in 2007.  In Pakistan, he has a wife and 5 children who are all students.  He has 5 previous convictions from 4 court appearances and has 2 previous similar convictions; in 2010 and 2017.

6.  In mitigation, it was relayed to the sentencing magistrate that he had been remanded in Castle Peak Bay Immigration Centre for 63 days in 2018 as well as for another period in Lai Chi Kok Reception Centre in 2011.  The appellant insisted the duty lawyer request the magistrate take into account those days already spent in detention in 2011 and 2018 and reduce his sentence accordingly.

Reasons for Sentence

7.  I have read the reasons for sentence and the magistrate relied upon HKSAR v Usman Butt and Another (2010) 5 HKLRD 452 in which the Court of Appeal stated an appropriate sentence for such an offence upon a plea of guilty would be 15 months’ imprisonment for a first-time offender.

8.  However, the appellant was not a first-time offender and the magistrate enhanced the starting point of 22.5 months to 24 months’ imprisonment in light of the 2 previous similar convictions.  He took into account the case of HKSAR v Sohail, Adil and Anor, HCMA 505/2019.

9.  There were no other mitigating factors which would warrant any reduction from that point.  That starting point was reduced to 16 months’ imprisonment after the appropriate discount was applied to reflect his guilty plea.

10.  As I have said, the issue of taking administrative detention into account was raised during mitigation.  The magistrate took the view that whether or not administrative detention should be given credit or taken into account in a subsequent sentence is a matter of discretion.

11.  He refused to exercise his discretion and reduce the 16-month sentence further by those days spent in remand for reasons unconnected to the present offence.

Grounds of Appeal

12.  The appellant put forward the general ground that his sentence was too severe.  He reiterated he was detained in CIC by the Immigration Department for 63 days in 2018.  His only ground of appeal was that this court should reduce the 16-month sentence by 63 days to take that into account.

13.  During the appeal hearing, the appellant accepted that he was detained in 2018 for wholly different reasons, that is reasons unrelated to this offence.

Conclusion

14.  The magistrate adopted the appropriate tariff for this offence and increased it slightly to take into account previous similar convictions.  The starting point and ultimate sentence was entirely proper.

15.  The period of administrative detention in 2018 was unrelated and not connected to the present criminal charge.  The magistrate saw no reason to exercise his discretion to take into account that period of detention.  I see no reason either to exercise my discretion.

16.  There are no merits in this appeal therefore, the appeal against sentence is accordingly dismissed.