HKSAR v. MUNAWAR, HUSSAIN

HCMA 368/2023

[2023] HKCFI 3165

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 368 OF 2023

(ON APPEAL FROM STCC 4357/2012)

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J U D G M E N T

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Appeal against Sentence

1.  The appellant was convicted of the offence of “breach of condition of stay”, contrary to section 41 of the Immigration Ordinance, Cap. 115, Laws of Hong Kong.  He was sentenced to 24 weeks imprisonment.

2.  The appellant now appeals against his sentence.  He was represented by the duty lawyer scheme in the court below but unrepresented in this appeal.

The Facts and Background

3.  On 12 November 2009, the appellant was arrested by the police for having overstayed in Hong Kong.  Enquiries revealed that the appellant arrived in Hong Kong on 3 June 2003 and was permitted to remain for 14 days until 17 June 2003.  He did not depart from the territory and overstayed 6 years and 4.5 months.  He was released on recognizance on 23 November 2009 after having been detained for 12 days.

4.  The appellant was released on recognizance because he had filed a non-refoulement claim after his arrest.  His claim has now been finalised therefore, he was brought up to court on 21 September 2023 in order for this outstanding charge to be finally dealt with.

5.  In mitigation, the sentencing court was informed the appellant previously had a clear record and was 49 years old.  It was stressed that he had been administratively detained for 12 days in 2009 after his arrest.

Reasons for Sentence

6.  I have read the reasons for sentence and the magistrate recognise that there is no tariff for this immigration offence but it is the norm that the length of overstaying in the territory is the principal factor in deciding sentence.  A sentence of between 36 weeks to 42 weeks is normally imposed after trial in the magistrate’s court for those that overstay for between 6 and 8 years in Hong Kong.

7.  The magistrate considered many authorities where the appellant had overstayed for a similar period of time; the sentences imposed were most often based on the length of the overstaying in Hong Kong.  The magistrate also considered the fact the appellant had been detained for 12 days before being released on recognizance.  After considering those authorities, a starting point of 36 weeks was considered appropriate and reduced by one-third to reflect the appellant’s plea at the earliest opportunity.  The appellant was sentenced to 24 weeks imprisonment.  The magistrate found no other mitigating factor to warrant any further reduction in sentence.

Grounds of Appeal

8.  The appellant put forward the general ground that his sentence was too severe.  He does stress that he had reported in a timely manner as directed to the Immigration Department for all the years he was released on recognizance.  He reiterated he had no record of absconding.  He also said during his appeal that in 2011, he had been detained for 2 months in Lai Chi Kok and 11 days in CIC after he had be arrested.  He now suggests that the magistrate should have taken this period of detention into account for this charge.

9.  He also suggested that I should reduce this sentence and give him a further discount on top of the one-third discount after plea for the mental stress that he has suffered during the last 10 years in Hong Kong awaiting a result of his non-refoulement claim.

10.  The respondent has reiterated that there is no tariff for overstaying offences and that the maximum is imprisonment for 2 years.  It is the norm that the sentencing court consider the length of overstay to determine sentence as well is whether employment was taking during the period of overstay.  Here the 6 years and 4.5 months overstay period was quite significant; could not be said to be short.

11.  The respondent submits the starting point and sentence after a full discount of one-third cannot be regarded as manifestly excessive and/or wrong in principle.

Conclusion

12.  The magistrate adopted a starting point that is neither manifestly excessive nor wrong in principle.

13.  The period of detention in 2011 was due to a wholly unrelated matter; it was not related to this charge.  There is no reason to take it into account and reduce the appellant’s sentence any further.

14.  There is no merit in this appeal; therefore, the appeal against sentence is accordingly dismissed.