HKSAR v. HASAN RASHED

HCMA 647/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 647 OF 2012

(ON APPEAL FROM STCC 3191/2012)

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J U D G M E N T

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1.  The appellant arrived in Hong Kong on 4 April 2006. On 6 October 2011 a removal order was issued against him. The intervening events are irrelevant to these proceedings. On 27 June 2012 he was seen working in a motor repair business in Sheung Shui. The appellant was arrested and charged with a single charge of taking employment while being a person in respect of whom a removal order is in force contrary to the Immigration Ordinance, Cap 115. He appeals a sentence of 18 months imprisonment imposed on him after his conviction after trial on 10 September 2012. He has not filed a notice of appeal against conviction, although today he complains that he had been wrongly convicted.

2.  The magistrate recognised that the Court of Appeal has fixed a tariff of 15 months imprisonment after a plea of guilty (see HKSAR v Usman Butt [2010] 5 HKLRD 452) in respect of this offence. She took 20 months as being the appropriate starting point after trial: given that the established discount for a timely plea of guilty is one third, a 15 month sentence on a plea equates to a sentence of 22½ months imprisonment after trial. The effect of a starting point of 20 months would be to reduce the discount to one quarter. That said, the error is one that favours the appellant.

3.  The magistrate noted that he had been in administrative custody for two months and deducted this from her starting point. There was no further mitigation available to the appellant. The sentence was in accordance with current sentencing practice. The appeal is dismissed.