HKSAR v. ISLAM SHAFIQUL

HCCC 322/2018

[2019] HKCFI 1940

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 322 OF 2018

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(Proceedings to 3.15 pm not required)

COURT:

On 11 April this year, Mr Islam, you were sentenced to 12 months’ imprisonment for remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. Colloquially we say that is illegally remaining here. You must have pleaded guilty if you were only sentenced to 12 months’ imprisonment.

This charge should have been dealt with not long after you were arrested, but because you filed a non-refoulement protection claim, it was put on hold. I have been told today that your claim has come to an end this charge was then outstanding. That is why you were taken to Sha Tin Magistracy in April.

Now, normally if an illegal immigrant into Hong Kong commits another offence, both charges would be dealt with together, but because of your status when the trafficking case was dealt with, and your status as an asylum seeker, it as not. When I dealt with sentence for the trafficking drugs case on 19 June, I should have made an order whether it be partly concurrent or consecutive or wholly concurrent, I should have made such an order in relation to the illegally remaining charge when I sentenced you to 6 years and 6 months for trafficking in drugs.

Now, you were lucky to have received a 12-month term of imprisonment, because it is a well established sentencing guideline that a sentence of 15 months’ imprisonment should be imposed after a guilty plea for the offence of illegally remaining in Hong Kong.

Now, such a sentence will usually be ordered to run consecutively to any other offence a person commits. The Court of Appeal has said that unless there is compelling circumstances, such as strong humanitarian reasons, the sentence for the immigration offence, the illegally remaining offence, should normally be imposed consecutively to the other offence.

Now, I have read the letter that you wrote to me, you ask me to make these 12 months completely concurrent to the trafficking sentence. This goes against what the Court of Appeal has held is appropriate. However, I did add 6 months to the starting point of 11 years and 3 months for the trafficking in dangerous drugs charge to reflect the aggravating factor that you were an asylum seeker when you committed this trafficking offence. You will recall I said that you committed a serious breach of trust and privilege for a person not normally entitled to even be in Hong Kong. I will also take into account that I considered a discount of 45 percent appropriate. If I round it down, after that discount that aggravating factor added 3 months to your dangerous drugs trafficking sentence.

So where I would normally make the entire term of imprisonment for illegally remaining consecutive to any other charge, here I intend to make it partly concurrent to take into account those 3 months which already reflect an enhancement for your status here in Hong Kong. This avoids double punishment.

So I order that 9 months of your present sentence of 12 months from the Sha Tin case be served consecutively to the 6 years and 6 months imposed for trafficking in dangerous drugs and the balance of 3 months to be served concurrently.

(Proceedings from 3.23 pm not required)

Court adjourns - 3.24 pm
2 July 2019