HKSAR v. MUHAMMAD MAHMOOD

HCMA 716/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 716 OF 2002

(ON APPEAL FROM KTCC 3899/2002)

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J U D G M E N T

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1. The Appellant appeals a sentence of 18 months imprisonment after conviction, on a plea of guilty, on a single charge of breaching a deportation order made on 22nd June 2001. He was deported to his home country after serving a sentence in respect of other immigration-related offences. He returned to Hong Kong on 8th June 2002. Why he did so is irrelevant.

2. The Magistrate regarded himself as bound by the decision of Madam Justice Beeson in HKSAR v NGUYEN Chi-trung a.k.a Dong Van-thanh [unreported HCMA1095/2001] in which she reviewed an array of sentences imposed in matters of this nature. She concluded that the appropriate sentence for this offence, for a first offender, is one of 18 months imprisonment after a plea of guilty. He could just as easily have referred to the judgement of Hartmann, J., who performed a similar exercise in HKSAR v NGUYEN Bui Tuan [unreported HCMA159/2001] but concluded that 15 months imprisonment was appropriate.

3. What these two cases illustrate is that an immediate custodial sentence is not wrong in principle and that 18 months imprisonment is not manifestly excessive even for a first offender.

4. The Magistrate imposed that sentence being satisfied, as he was entitled to be on what was before him, that there was no further mitigation available to the Appellant. On the day that he was sentenced the Appellant's father died. No doubt this is a matter of distress to the Appellant but it is no justification for varying an otherwise appropriate sentence.

5. The appeal is dismissed.