HKSAR v. AKHTAR, MUHAMMAD JAVED

HCMA 474/2019

[2020] HKCFI 175

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 474 OF 2019

(ON APPEAL FROM SHATIN MAGISTRACY

CASE NO STCC 259 OF 2019)

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JUDGMENT

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1.  The Appellant faced one count of “Taking employment while being a person in respect of whom a removal order is in force”, contrary to sections 30AA(1)(b) and 30AA(2) of the Immigration Ordinance Cap 115.

2.  Appellant was convicted after trial, and was sentenced to 22 months and 2 weeks’ imprisonment.  Appellant now appeals against sentence and says that the sentence was too severe.  Appellant, in court, also added that his father had just passed away in Pakistan and his mother is now in hospital and he hoped to be back as soon as possible.

The Magistrate’s sentence

3.  The Appellant was subject to a removal order which was still in force on 15 January 2019.  Being a person released on recognisance but prohibited from taking up any paid or unpaid employment, the Appellant, on 15 January 2019, was being found taken up employment as an odd job worker by conveying goods at the container and the tailboard of a medium goods van parked near the loading area of Kowloon Bay Industrial Centre located at 15 Wang Hoi Road, Kowloon Bay. 

4.  The Magistrate considered that the Appellant is a torture claimant of 48 years old with no previous conviction.  He had spent 90 days of administrative detention, which was unrelated to the present case.

5.  The Magistrate followed the guideline laid down in the Court of Appeal case HKSAR v Usman Butt & Anor [2010] HKLRD 452 where a sentence of 15 months of imprisonment was imposed upon a plea of guilty for the offence of section 38AA(1)(b). The Appellant was convicted after trial, the correct starting point is therefore 22 months and 2 weeks’ imprisonment.

6.  The Magistrate, having considered the Appellant’s mitigation did not consider any of which merit a departure of reduction from the starting point, so the Magistrate sentenced the Appellant to a sentence of 22 months and 2 weeks’ imprisonment accordingly.

Discussion

7.  The Magistrate did correctly adopt the starting point laid down in Usman Butt, which is 15 months’ imprisonment upon guilty plea for this kind of offence.

8.  Further, as what the Respondent had also stated, in respect of the 90 days of administrative detention prior to the present offence, the Appellant would not be entitled to any statutory reduction for that period as far as section 67A(1A) of the Criminal Procedure Ordinance Cap 221 is concerned, that subsection provides:

“(1A) The length of any sentence of imprisonment imposed on a person by a court shall also be treated as reduced by any period during which he was, immediately prior to his first appearance in court in connection with any proceeding relating to the offence for which the sentence of imprisonment was imposed, in custody:

(a) of the police, Customs and Excise Department or Independent Commission Against Corruption in connection with that offence; or

(b)   under Part VII of the Immigration Ordinance (Cap 115) in connection with that offence.”

9.  However, according to section 67A of the CPO, the Appellant’s time spent in detention, if it is to be discounted has to relate to the offence for which the Appellant was sentenced.  Now since the Appellant’s 90 days of administrative detention was unrelated to the present case, the Magistrate was correct not to reduce his sentence by the time spent in administrative detention.  Also see HKSAR v Eftakhar [2015] 5 HKC 427.

10.  I further consider that it was not a just and appropriate case to exercise my discretion to further reduce the sentence and I also do not see any merit to depart from the usual guideline, nor was the Magistrate erred in any way for the sentence imposed.

11.  Therefore, the appeal against sentence must be dismissed accordingly.