HKSAR v. TANVEER AHMED

HCMA 134/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 134 OF 2017

(ON APPEAL FROM STCC 3607 OF 2016)

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J U D G M E N T

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1.  The appellant was charged with one count of taking employment while being a person in respect of whom a removal order is in force.[1] He was convicted after trial by Deputy Magistrate Mr LAM Tsz-kan and was sentenced to 22 months and 2 weeks’ imprisonment.

2.  The appellant now appeals against sentence.   

The facts

3.  The appellant was subject to a removal order which was issued to him on 15 January 2014 and was still in force at the material time. He was prohibited from taking up any employment, paid or unpaid in Hong Kong including the date of the offence on 19 September 2016.

4.  On 19 September 2016 at about 11:30 am, the Immigration Officers conducted an operation at “Golden Harbour Seafood Restaurant” (“the restaurant”) which was situated at 1/F, 3/F, No 28, Hung To Road, Kwun Tong.  The restaurant was under renovation at that time.

5.  Immigration Officers found the appellant was moving furniture from the restaurant to a recycle skip nearby.  At that time he was wearing a pair of labour gloves.  He was later arrested.

6.  The magistrate found the appellant had taken up employment as an odd job worker. 

Reasons for sentence

7.  The magistrate followed the leading case of HKSAR v Usman Butt [2010] 5 HKLRD 452.  The Court of Appeal laid down as the guideline sentence a tariff of 15 months imprisonment after plea of guilty in relation to section 38AA offences.  The magistrate found no reason to depart from the tariff sentence.  He therefore adopted a starting point of 22 months and 2 weeks’ imprisonment for the charge.

8.  After considering a number of authorities, the magistrate found the appellant was not entitled to any reduction under s 67A(1A) of the Criminal Procedure Ordinance, Cap 221, since the present offence was unrelated to the administrative detention.  He further found no reason to exercise his discretion to make any deduction for the administrative detention. 

9.  Finding no further reason for a reduction of sentence the magistrate sentenced the appellant to 22 months and 2 weeks’ imprisonment.

Grounds of appeal

10.  At the hearing the appellant informed the court that he accepted that he was found guilty of the offence and now wished to plead guilty.  On that basis he requested the court to reduce his sentence and sentence him as though he had pleaded guilty.  He also sought for the period that he had spent in administrative detention to be deducted from the sentence imposed. 

Discussion

11.  The appellant is 41 years old.  He came to Hong Kong in 2007.  He has two previous records, both of which were related to immigration offences.  He is a torture claimant.  The result of his non-refoulement claim is still pending.

12.  The appellant was convicted after trial, there is no merit or basis for the appellant to be sentenced as though he had pleaded guilty.  The appropriate sentence to be imposed is one where the appellant is convicted after trial. 

13.  According to immigration records, the appellant had been placed under administrative detention for a total of 66 days, i.e. from 15 November 2007 to 22 December 2007 (38 days) and from 8 January 2014 to 4 February 2014 (28 days).  The appellant’s last administrative detention was more than 2 years prior to the present offence.

14.  The magistrate was correct not to make any deduction for his time spent in administrative detention as the offence was unrelated to the administrative detention under section 67A of the Criminal Procedure Ordinance, Cap 221. Pursuant to s.67A the detention has to relate to the offence for which the appellant was sentenced see HKSAR v Khan Aftab HCMA 34/2015. 

15.  As no discount was applicable under s 67A above the magistrate had a discretion whether to further reduce the sentence on account of the appellant’s previous detention.  As Zervos J said HKSAR v Eftakhar Beg HCMA 262/2015[2],

“In future, magistrates when dealing with cases of this type should be appropriately informed of the correct status of any period of administrative detention and whether, in particular, it has been previously taken into account by the courts for any previous sentence imposed on the defendant. The magistrate is then in a better position to address whether any period of administrative detention can or should be reduced from a custodial sentence imposed under section 67A(1A), and if not, whether under the court’s sentencing discretion, the period in custody which has not been previously taken into account in the reduction of a sentence, should nevertheless be reduced from the custodial sentence imposed in order to address any injustice or unfairness to the defendant.”

16.  Mr Derek Wong SPP for the Respondent, informed me that the appellant’s period in administrative detention had not been taken into account in his previous sentences of imprisonment as it occurred after he was sentenced for those offences. 

17.  At the end of the day this appeal is whether the magistrate made any mistake in the exercise of his discretion in not reducing the sentence by deducting the time spent in administrative detention. 

18.  The magistrate’s exercise of his discretion should only be disturbed if it be shown that he was plainly wrong or that he had failed to take into account matters that he should have had in mind when exercising his discretion.  I am of the view that the magistrate did not err in this respect.

19.  There is no merit in this appeal.  The appellant’s appeal against sentence is dismissed.