R. v. IQBAL ZAHID alias ZAHID IQBAL

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.560 of 1996

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J U D G M E N T

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1. This is an appeal against sentence. The appellant was born in Pakistan in 1962. In 1991 he came to Hong Kong on a valid passport in his own name and with true particulars. He was then convicted of overstaying in Hong Kong and fined, and on 24th September 1992, he was removed from the jurisdiction. He then secured another passport with false details.

2. On 14th November 1992 he returned to Hong Kong. He presented the passport at immigration control and said that he was Iqbal Zahid, born 25th December 1969. Using that unlawfully obtained travel document he committed the offences which form the charges for which he was sentenced by the magistrate.

[Note : Tape of ex tempore judgment damaged. What follows in this paragraph is a reconstruction from notes :

3. On presentation of the passport, he was given permission to stay in Hong Kong until 14th February 1993. He remained however until March 1996. He was charged with breaching a condition of stay; with using an unlawfully obtained travel document for the purpose of immigration arrival; and with making a false representation to an immigration officer. He pleaded guilty, and the magistrate sentenced him to six months' imprisonment for the first offence, six months' imprisonment for the second to run consecutively to the first, and six months' imprisonment for the third to run concurrently with the other two sentences - a total of 12 months' imprisonment.]

4. Mr Veltro has most helpfully referred me to his records and summaries of a large number of cases within this category. They are all decisions on appeals to the High Court from magistrates. The range is wide, from one month to nine months, although the majority appear to me to be in the two to three months rather than six month range. The extent to which the offender has overstayed is a clearly relevant factor. In this case he overstayed for three and a half years. What is more, he had previously overstayed and had been prosecuted and removed from the jurisdiction. Therefore he was fully aware of the seriousness of doing so, and the possible consequences. So his flouting of this law for the second time was with cynical disregard of Hong Kong's immigration rules. In the circumstances, six months is on the high side but not manifestly excessive.

5. However there is a material fact which appears not to have been taken into account, and that is that the appellant surrendered himself to the authorities. He surrendered himself and told them that he was an overstayer and wanted to return to his homeland. He did not, however, reveal the fact that his travel document was bogus. That was discovered by the authorities. The magistrate has, it seems, overlooked this important mitigating factor of surrender to the authorities. Whilst the overstay cannot in the circumstances be overlooked, it seems to me that a significant reduction in sentence should be effected for that offence. I shall in the circumstances substitute a sentence of three months' imprisonment for this offence.

6. As for the passport offence, that is a serious matter. The sentences were in my judgment on the low side. It should be remembered that this appellant has once before committed an immigration offence, and within two months of his removal committed these offences. He should consider himself fortunate not to have received a higher sentence from the magistrate for the offence of using an unlawfully obtained travel document. I shall however not disturb the magistrate's sentences for these two offences. Accordingly, in the result the sentences for the use of the unlawfully obtained travel document and for knowingly making a false representation of six months imprisonment on each offence concurrently remains as before. They shall run concurrently to each other but consecutively to the three month's term which I have substituted for the breach of condition of stay, making a total of nine months in all.

7. The appellant tells me that his mother has recently died. That is of course unfortunate. But circumstances such as those are regaled before these courts in virtually every case involving someone from outside the jurisdiction, and I shall not further reduce the sentences on account of these suggested family circumstances.