HKSAR v. SALIM

HCMA 466/2019

[2019] HKCFI 2930

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 466 OF 2019

(ON APPEAL FROM STCC 2009/2019)

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J U D G M E N T

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1.  The appellant was convicted after trial on a charge of taking employment while being a person in respect of whom a removal order is in force and this is contrary to section 38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap 115. The appellant was sentenced to 22 months’ imprisonment.

2.  This is his appeal against sentence, on the grounds that he considered that he did not work and that the sentence therefore was incorrect.  I had reminded the appellant that this is only an appeal against sentence.  This is not an appeal against conviction and I will rely on the facts as found by the learned magistrate at the trial upon conviction when considering whether the sentence is manifestly excessive or wrong in principle.

3.  The facts as found by the learned magistrate was that the appellant came to Hong Kong on 23 September 2005 and was allowed to remain as a visitor until 7 October the same year.  On 28 November 2006, the appellant was arrested by the police and a removal order was issued upon him in July 2008.  On 16 May 2019, the appellant was considered a person in respect of whom a removal order was in force.  Police officers conducted an operation at the wholesale market in Fanling.  One of the police officers observed the appellant conveying five foam boxes from a truck and piled them up at the scene.  When the police approached the appellant, the appellant tried to flee but was subsequently arrested by the police.

4.  The second witness in the trial was the driver of the truck and he said he drove the truck from China to Hong Kong conveying vegetables and he said that the white foam boxes carried by the appellant contained vegetables.  The learned magistrate convicted the appellant of the charge.  He had one previous conviction of breach of condition of stay in 2008 for which he was sentenced to three months’ imprisonment.

5.  In mitigation, it was pointed out that the appellant is 49 years old and came from Bangladesh, and that he suffered from physical ailments.

6.  In considering sentence, the learned magistrate considered the Court of Appeal case in HKSAR v Usman Butt [2010] 5 HKLRD 452, and the Court of Appeal there said that 15 months’ imprisonment for this offence was appropriate after a guilty plea.  So the learned magistrate considered that the starting point as suggested was about 22.5 months’ imprisonment after trial.  However, the learned magistrate reduced the sentence to 22 months to take into account the mitigating factors advanced on behalf of the appellant.  The appellant appealed against the sentence in that he considered it was too heavy.  In court, the appellant appeared in person and said that he did not work and he went to the scene of the offence for other purposes and he said that the prosecution had no proof that he worked there.  I reminded the appellant that this is not an appeal against conviction.  It is only an appeal against sentence.  However, I will say that the learned magistrate did have proof in front of him because it came from the police officer who observed the appellant carrying the boxes from the truck to the place where he put it down but I am not here to consider whether his conviction was correct or not, only the sentence.  I do not consider that the sentence of 22 months is in any way manifestly excessive or wrong in principle, so the appeal is dismissed.