THE QUEEN v. SHAZAD AHMED

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 845 OF 1993

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J U D G M E N T

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1. The appellant was convicted after trial of three offences, namely one charge of using an identity card of another person and two charges of breach of conditions of stay. He was sentenced to 12 months’ imprisonment in respect of the first charge and three months’ imprisonment each in respect of the other two charges, all the sentences to run concurrently. He now appeals against these sentences.

2. The evidence showed that he was found packing goods inside certain premises when the police officers came to check whether there were illegal immigrants working there. While the police officers were doing the checking, the appellant was seen to suddenly run away and jump out of a window in order to escape. In the course of doing that his leg was broken. He was then arrested. His employer gave evidence to the effect that when the defendant came to apply for employment, he produced an identity card which was accepted. The identity card was found to be that of somebody else. It transpired that the appellant had shown his employer an identity card belonging to another person in order to seek employment and has since worked for about a month.

3. The appellant came to Hong Kong as a tourist from Pakistan but started to work when he was here. He was 22 years of age and had a wife in his           home country. In this appeal he told me that his family in Pakistan was in very poor condition. He asked for forgiveness and urged the court to be lenient with him. The learned magistrate took the view that a nine months sentence was appropriate after a guilty plea to this type of offence for a non-Chinese illegal immigrant. He further said that since the appellant had maintained a plea of not guilty, he had forfeited the credit of a guilty plea. He therefore imposed a total sentence of 12 months’ imprisonment.

4. With respect to the learned magistrate, I do not think he was in any way wrong in ordering such sentences which cannot be regarded in any way as manifestly excessive. However, because the appellant had broken his leg in the course of escaping arrest, I should think that some discount could be given on humanitarian grounds. I am only too mindful of the fact that his injury was that of his own making and that the learned magistrate was correct in principle to ignore this. The appellant told me that his two friends who had worked together with him in the same premises had, upon their pleas, been sentenced to nine months’ imprisonment. Purely on humanitarian grounds, I would tamper justice with mercy and give him an allowance to which he was strictly speaking not entitled. I would therefore allow his appeal and reduce the sentence in respect of the first charge from 12 months’ to nine months. The other two sentences are to remain and to run concurrently.