HKSAR v. AMARJIT, SINGH

HCMA 437/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 437 OF 2015

(ON APPEAL FROM KTCC 3158 OF 2015)

____________

____________

________________

JUDGMENT
________________

1.  The appellant appeals against sentence.

2.  The appellant was sentenced to 15 months’ imprisonment on two charges, to run concurrent to each other, for two offences of using a forged ID card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap 177. 

3.  The appellant pleaded guilty to those two charges before the Principal Magistrate, Ms Bina Chainrai.

The facts of the case

4.  In summary, the appellant had used an ID card on two separate occasions on 3 July 2015 to obtain employment.  The first time he used the ID card was in the early morning at about 7:30 am whereby he applied for a job at a company situated at North Point.  That company directed the appellant to go to a location in Stanley at Redhill Peninsula.  When he arrived at that location he produced his forged ID card to obtain employment as a cleaner.  It was suspected that the ID card was false, or forged, and the security guard there made a report to the police.  Thereafter, the appellant was subsequently arrested.

5.  Mitigation by his counsel before sentence was made before the magistrate. They were that the appellant pleaded guilty; he had a clear record; he came from India; he is a torture claimant; he is married - his wife and three children, aged 2 to 5 were in India; and that his mother suffered from kidney disease and thus needs money for her treatment.

6.  The magistrate took into account his mitigation put forward and referred to the authority of HKSAR v Li Chang Li [2005] 1 HKLRD 864.  She found that the appellant had used the forged ID card to obtain employment and therefore concealed his own status in Hong Kong that he was not employable.  She sentenced him to 15 months’ imprisonment.  She sentenced the defendant on both charges to the same term and ordered them to run concurrent.  She found that there was nothing placed before her in mitigation which could reduce the sentences. 

The appellant’s grounds of appeal

7.  In the appellant’s general grounds of appeal, he said that the sentence was too severe.  The appellant appears before me not legally represented today at this hearing, and in advancing his grounds of appeal, it transpires that in fact he accepts that the sentence imposed upon him was appropriate.  

8.  He however argues the court to give him credit or a reduction to that term to take into account the time he spent in administrative detention at CIC. He says that he has spent since 23 November 2013 to 19 February 2014 in administrative detention which is a total of 89 days.  In those circumstances he seeks for that amount of time to be deducted from the term he is sentenced to serve.

9.  The other ground of appeal is on humanitarian grounds in that he wishes to go back to India shortly to take care of his wife, children and ailing mother.  He says his wife is now sick and there is no one to take care of his children.  He therefore requests for this court’s leniency to reduce the sentence further so that he can go back to India to help his family and his mother.

Discussion

10.  The sentence of 15 months’ imprisonment accords with the sentencing tariff for the present offence: see HKSAR v Tran Viet Thanh [2012] 1 HKLRD 903. 

11.  For possession of a forged ID card by a person who entered or remained in Hong Kong lawfully, the standard sentence was 12 months’ imprisonment after plea.  If the person produced or used a forged ID card, or an ID card belonging to another, to conceal his identity to work illegally or unlawfully further his stay in Hong Kong, the starting point upon a plea of guilty would be enhanced to 15 months’ imprisonment.

12.  The magistrate was therefore correct to state that the appropriate term was one of 15 months’ imprisonment.

13.  In the present appeal, the appellant asks for this court to exercise its discretion to deduct from the sentence the time spent by the appellant in administrative detention.  This was not raised before the magistrate.  However, as this is a rehearing I am able to entertain his application and to decide whether that detention period should be deducted. 

14.  I am informed by Mr Daryanani for the respondent that the time spent in administrative detention at CIC was, in fact, from 23 January 2014 to 19 February 2014.  The appellant however says he was arrested at the airport in November and he was in administrative detention from 24 November 2013 until 19 February 2014.

15.  As this matter only came to light at this hearing, I have adjourned until late today for Mr Daryanani to make inquiries with the Immigration Department as to the time spent by the appellant in administrative detention. 

16.  Mr Daryanani is unable at this time to confirm that the appellant was in detention since November 2013. 

17.  However, for this present hearing my understanding is that Mr Daryanani does not object to the court taking those dates as time that the appellant spent in administrative detention, that is from November 2013 to February 2014 being 89 days.

18.  The time spent in administrative detention, which is not disputed by the appellant, is that it was in relation to his torture claim and not in relation to these present offences - rather, I should say, his non refoulement claim. 

19.  One of the issues in this appeal, therefore, is whether I should deduct from the sentence the time spent by the appellant in administrative detention of 89 days. The relevant section is section 67A(1)(a) of the Criminal Procedure Ordinance, Cap 221.

20.  It is clear from the wording of section 67A that the time spent in detention, if it is to be discounted, has to relate to the offence for which the appellant was sentenced and was immediately prior to his first appearance in court.  I referred to this section in a previous judgment: HKSAR v Kan AftabHCMA 34/2014.  In a more recent case of HKSAR v Eftakhar Beg HCMA 262/2015 Zervos J also gave detailed consideration to this issue. 

21.  The time that the appellant spent in administrative detention was clearly not in relation to the present offences, ie, they had no connection with his offences of using the forged ID card.

22.  Secondly, the period in detention, or in custody, was not immediately prior to his first appearance in court for these present offences. 

23.  In those circumstances the period of detention does not satisfy the nexus and proximity of the period in custody with the sentence to be imposed in relation to this offence.

24.  In those circumstances there is no reason to deduct that time spent in administrative custody.

25.  Turning to the humanitarian reasons as grounds to reduce the sentence such that he may return to India to take care of his family.  These are not mitigating factors such that the sentence can be further reduced.  Mitigation as to general hardship to family members is not a mitigating factor persuasive to further reduce the sentence as stated in HKSAR v Shum Chung Wai [2002] 2 HKLRD 81.

26.  In those circumstances, the sentence imposed was appropriate and his appeal against sentence is therefore dismissed.