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HCMA 534/2011
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MAGISTRACY APPEAL NO. 534 OF 2011
(ON APPEAL FROM KCCC 229 OF 2011)
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BETWEEN
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HKSAR |
Respondent |
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and
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ANOWAR HOSSAIN |
Appellant |
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Before: The Honourable Mrs Justice V. Bokhary in Court
Date of Hearing: 7 October 2011
Date of Judgment: 7 October 2011
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J U D G M E N T
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1. This Appellant pleaded guilty in the Magistrates’ Court to the two charges laid against him under the Immigration Ordinance, Cap. 115. Charge 1 is of remaining without authority after having landed unlawfully, contrary to s. 38(1)(b). Charge 2 is of breach of deportation order. The particulars of Charge 1 are that on 14 January 2011 at Tsim Sha Tsui Police Station, the Appellant, having landed unlawfully, did remain without authority. The particulars of Charge 2 are that on that date and in that place, the Appellant, being a person in respect of whom a deportation order dated 15 May 1996 was in force, was in Hong Kong in contravention of that order.
2. The Magistrate imposed a sentence of 15 months’ imprisonment on Charge 1 and a sentence of 18 months’ imprisonment on Charge 2. He ordered that the 6 months of the sentence of Charge 1 run consecutively to the sentence on Charge 2. So the Appellant received a total of sentence of 24 months’ imprisonment.
3. He now appeals against sentence. Four perfected grounds of appeal have been filed on his behalf. Ground 1 reads: “The sentence of a consecutive term of 6 months was excessive and/or wrong in principle”. Ground 2 reads: “The order that 6 months of the 1st charge was to run consecutively to the 2nd charge was wrong in principle”. Ground 3 reads: “The total term of imprisonment of 24 months was manifestly excessive”. Ground 4 puts forward humanitarian considerations based on the mental illness of the Appellant’s wife in Bangladesh and there being nobody to look after their son there.
4. The evidence on humanitarian considerations is, in my view, too tenuous to act upon. But there is something in the other grounds. Counsel for the Respondent very properly concedes, quoting from her helpful written submissions that “a consecutive term of 6 months in the present case is on the high side” and that “it does appear that there is merit in the Appellant’s appeal against sentence”. In my view, the total sentence should be reduced from 24 months’ imprisonment to 18 months’ imprisonment. I will effect that reduction by ordering that 3 months of the sentence on Charge 2 run consecutively with the sentence on Charge 1.
5. The appeal against sentence is allowed to that extent accordingly. I thank both counsels for their assistance.
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(V. Bokhary)
Judge of the Court of First Instance
High Court |
Ms Jane Ho, instructed by Messrs Herbert Tsoi & Partners (assigned by the Legal Aid Department), for the Appellant
Ms Noelle A Chit, of the Department of Justice, for the Respondent
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