HKSAR v. BABAEI MONFARED SAEID

HCMA 875/2001

HEADNOTE

The Court of Appeal did not in HKSAR v. Felix Rohrer, Criminal Appeal No. 114 of 2001, 21 August 2001 say that the fact that someone is a foreigner will result in a lesser sentence in all cases, but said only that it can have that result in an appropriate case depending on all the circumstances.

Some elements of mitigations, e.g. guilty pleas and testimony for the prosecution against accomplices, call for a specific and substantial discount of sentence. "Foreignness" is not such an element: see the Court of Appeal's decision in Attorney General v. Pedro Nel Rojas [1994] 2 HKCLR 69 at p.73. At the most it is a factor to be considered in determining the totality of the sentence, reducing the same by something less than a substantial degree. There are many different factors, of which "foreignness" is only one example, which sometimes justifies some small downward adjustment of a sentence and which sometimes can justifiably be treated as having no effect at all. Whether such a factor should be given effect is generally entrusted to the sentencing court to decide, and appellate courts are rightly slow to interfere.

The fact that a sentencing court does not mention a factor such as the offender's "foreignness" does not necessarily mean that the sentencing court has not either applied that factor or decided not to apply it after proper thought.

Whether to make a downward adjustment of an offender's sentence for his "foreignness" is to be decided in the light of all the circumstances, and that responsibility rests principally with sentencing judges.

HCMA 875/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 875 OF 2001

(ON APPEAL FROM KTCC 4485/2001)

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J U D G M E N T

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1. This Appellant is an Iranian man in his late twenties. On 17 July 2001 he pleaded guilty before Thomas Tsang Esq in the Magistrate's Court at Kwun Tong to one charge of using a false travel document for the purpose of Part II of the Immigration Ordinance, Cap. 115, and one charge of making a false representation to an immigration assistant acting under or in execution of that Part of that Ordinance. The false travel document was a Portguese passport in the name of Francisco Garcia Tavares. Both offences were committed at the airport on 28 June 2001 when the Appellant attempted to depart from Hong Kong for Japan using that passport and represented to an immigration assistant that he was the person named therein as its holder.

2. The learned Magistrate, taking into account the Appellant's clear record and guilty pleas, sentenced him to a total of six months' imprisonment by way of concurrent terms of six months on the false travel document charge and four months on the false representation charge.

3. The Appellant now appeals against his sentence. His Notice of Appeal in Form 102 contains no ground of appeal against sentence beyond the pro forma ground printed on the form that the sentence was "too severe".

"Foreignness"

4. In the course of his oral arguments, he put forward a number of grounds for reducing his sentence. One of them is his "foreignness". I will deal with this ground first.

5. The question of a person receiving a lesser sentence by reason of his being a foreigner has been the subject of much public debate since the latest decision of the Court of Appeal on the point. This is HKSAR v. Felix Rohrer, Criminal Appeal No. 114 of 2001, 21 August 2001. At pp 7L-8B the Court of Appeal said:

"For our part, we recognise that an offender has only himself to blame if he finds himself in prison in a foreign land. He is the author of his own misfortune. But the fact remains that a foreigner in a prison in Hong Kong may well find prison a harsher regime to endure than a prisoner who has lived in Hong Kong. Depending on his nationality, he might find himself isolated linguistically and culturally, having to face an unfamiliar diet, and deprived of the opportunity of visits from his family and friends. The fact that prison could for these reasons be a hasher regime for a prisoner to endure is a factor which can, in an appropriate case, justify some reduction in the length of any sentence of imprisonment imposed. We think that that applies to a German-speaking Swiss national, who has never been to Hong Kong before, serving a sentence of imprisonment in Hong Kong. In all the circumstances, we propose to reduce the Applicant's overall sentence by another 3 months."

6. In that case, the total sentence of 4 years and 4 months' imprisonment passed by the District Court Judge was reduced by the Court of Appeal to a total sentence of 2 years and 9 months' imprisonment. There were other reasons apart from that Appellant's "foreignness" for reducing the sentence in that case, and that element accounted for only a small fraction of the overall reduction made by the Court of Appeal.

7. It is also to be noted that the Court of Appeal did not say that "foreignness" will result in a reduction in all cases, but said only that it can have that result in an appropriate case. While a "foreignness" reduction was considered appropriate in that case of a German-speaking Swiss national who had never been to Hong Kong before, it does not mean that it would be considered appropriate in the case of every foreigner or even every foreigner of that description. It must depend on all the circumstances. The Court of Appeal never said otherwise, and I do not think that they meant otherwise.

8. Some elements of mitigations, e.g. guilty pleas and testimony for the prosecution against accomplices, call for a specific and substantial discount of sentence. "Foreignness" is not such an element: see the Court of Appeal's decision in Attorney General v. Pedro Nel Rojas [1994] 2 HKCLR 69 at p.73. At the most it is a factor to be considered in determining the totality of the sentence, reducing the same by something less than a substantial degree. There are many different factors, of which "foreignness" is only one example, which sometimes justifies some small downward adjustment of a sentence and which sometimes can justifiably be treated as having no effect at all. Whether such a factor should be given effect is generally entrusted to the sentencing court to decide, and appellate courts are rightly slow to interfere.

9. The fact that a sentencing court does not mention a factor such as the offender's "foreignness" does not necessarily mean that the sentencing court has not either applied that factor or decided not to apply it after proper thought. In Dorrington v. Griff Fender (Swansea) Ltd [1953] 1 WLR 690 at p. 694 Birkett LJ said:

"Merely because a judge does not mention a thing, it does not follow that he has not had it in mind."

In Lam Pak Chui v. Tsang Mei Yang [2001] 1 HKLRD 193 the Court of Final Appeal applied that statement by Birkett LJ to a trial judge's assessment of the appropriate quantum of damages: see p. 206A-D. I think that it can also be applied to a trial judge's assessment of the appropriate quantum of punishment.

10. Reverting to HKSAR v. Felix Rohrer, it is to be noted (see p. 7 of the judgment) that the Court of Appeal was not prompted to intervene by a mere omission on the part of the sentencing judge to mention that Appellant's "foreignness". The Court of Appeal was prompted to intervene by the sentencing judge's statement:

"A foreigner committing crimes in Hong Kong [should] not expect leniency because of the language problem and their hardship, if any, of being detained in a foreign jail. Hardship, if any, is self-induced and you do not deserve any sympathy."

11. As to the future, I think that it would be misleading to speak of judges following the Court of Appeal when they adjust a sentence downwards for the offender's "foreignness" or not following the Court of Appeal when they do not make such an adjustment. Sentencing judges and judges exercising the appellate jurisdiction which I am now exercising are bound by decisions of the Court of Appeal and we follow them. The point is that the Court of Appeal's decisions on the point do not call upon judges either always to make such adjustments or never to make such adjustments. The appropriate course is to be decided in the light of all the circumstances. That responsibility rests primarily with sentencing judges.

12. In all the circumstances of the present case, I do not think that the sentence passed by the learned Magistrate should be reduced by me on the ground of the Appellant's "foreignness".

Other grounds

13. So I turn to the Appellant's other grounds. These go to his physical medical condition, his psychiatric condition and the difficult circumstances of his background. Mr Dick for the prosecution concedes that there was a sound basis for some reduction of sentence on the ground that these factors have not been sufficiently reflected in the sentence passed.

Result

14. In all the circumstances, only on the basis conceded by the prosecution and not on the basis of "foreignness", I think that it would be right to allow this appeal by reducing the sentence from six months' imprisonment to five months' imprisonment. The appeal is allowed to that extent accordingly.