HKSAR v. MUHAMMAD YASIN

HCMA 1168/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1168 OF 2000

(ON APPEAL FROM NKCC 6163/2000)

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J U D G M E N T

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1. The Appellant appeals against his sentences passed in the Magistracy on three counts, (i) that he breached the condition of stay contrary to section 41 of the Immigration Ordinance Cap. 115; (ii) that he had in his possession an identity card which related to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance and (iii) he, without lawful authority or reasonable excuse, used an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance.

2. In respect of the first charge the Magistrate sentenced him to 2 months' imprisonment; in respect of each of the second and third charges, he was sentenced to 15 months' imprisonment and the terms were ordered to run concurrently.

3. In September 2000 police officers saw the Appellant acting suspiciously, approached to question him and asked for proof of identity. The Appellant produced a Hong Kong identity card in the name of Mohammad Umer Shararif Chaudhry to the officers, and when the officers checked with the console they found that that was a card which had been reported lost. At that stage the Appellant declined to give his real name and later police found a Security Personnel permit, in the same name as the identity card, in the Appellant's possession.

4. Later the Appellant's girlfriend was located and she brought the Pakistan passport belonging to the Appellant to the police station. When that was checked the Appellant's identity and his status as an overstayer were confirmed. The Appellant had been permitted to stay in Hong Kong until 5 January 2000 by the Director of Immigration. The Appellant admitted that he had used the identity card that belonged to the other person to obtain the Security Personnel permit.

5. The Magistrate in sentencing took into account that the usual sentence for this type of offence, is 15 months. Where an offender is in Hong Kong illegally at the time of his offence either because he is an illegal immigrant, or because he is an overstayer, a sentence of 15 months is considered to be the appropriate sentence on a guilty plea.

6. The Magistrate took into account the plea and the facts of the case. In respect of the first charge he took 3 months as a starting point given that the period of overstay was about 9 months and giving the Appellant 1/3 discount for his guilty plea sentenced him to 2 months imprisonment.

7. The Appellant applied to review the sentence and put forward as the reason for the review the fact that his father, brother and sister were all respectively suffering from disease and were in poor condition and that he was required to support them. The Magistrate declined to review the sentence.

8. Today before me on appeal, the Appellant has advanced the same grounds and has produced medical certificates which appear to confirm that his father, his younger sister and younger brother apparently suffer from some form of disease. There is no independent verification of the material put before me in that regard.

9. I am satisfied that the Magistrate took into account the circumstances of the case, the appropriate mitigating factors and that he based the sentence on the correct guidelines. While the court feels sympathy for the Appellant in his role as family supporter, there is no reason to depart from the sentencing imposed by the Magistrate. I note that in respect of these illnesses they were all pre-existing at the time the Appellant came to Hong Kong. In the case of the younger brother he has been an epileptic for a period of 23 years according to the medical certificate that is put in front of me.

10. This appeal is dismissed.