HKSAR v. ALI, AKHTAR

HCMA136/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 136 OF 2011

(ON APPEAL FROM STCC 6925 OF 2011)

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BETWEEN

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JUDGMENT

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1.  The appellant, who appears in person, appeals against the sentence of 9 months’ imprisonment imposed upon him on 18 January 2011 by Mr Andrew Ma, following his plea of guilty on 22 December 2010, in the Shatin Magistrates’ Court for the offence of remaining in Hong Kong on 13 February 2008 without the authority of the Director of Immigration, having landed in Hong Kong unlawfully, contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115.

The facts

2.  The appellant accepted that he had entered Hong Kong unlawfully by boat from the Mainland on 22 September 2006.  Thereafter, he remained in Hong Kong until he was arrested by a police officer on 13 February 2008 for the offence of unlawfully remaining in Hong Kong.  The appellant was detained in custody until 18 April 2008, when he was released on his own recognizance by the Immigration Department.

Reasons for sentence

3.  In his reasons for sentence the magistrate observed that the appellant had been made the subject of a sentence of imprisonment for 6 weeks, suspended for 2 years, on 28 April 2004 for having breached a condition of stay, contrary to section 41 of the Immigration Ordinance, Cap. 115.  Noting that the judgment of the Court of Appeal in R v So Man King [1989] 1 HKLR 142 established that the appropriate sentence after plea of guilty to be imposed in respect of this offence was one of 15 months’ imprisonment, the magistrate stated that he gave a further discount of 3 months’ imprisonment, to reflect the fact that the appellant would be unable to return to Hong Kong to be with his dying father.  A medical certificate described his father as being a patient in the cardiology unit in a hospital in Pakistan and that he was in need of care and attention in the last days of his life.  The magistrate afforded the appellant a further discount to reflect his detention following arrest, but before release on recognizance by the Immigration Department.  In the result, he imposed a sentence of 9 months’ imprisonment.

4.  On 9 February 2011, the magistrate refused the appellant’s application to review that sentence.

Grounds of appeal against sentence

5.  In his homemade grounds of appeal against sentence, the appellant urges this court to reduce the sentence imposed upon him on humanitarian grounds.  He accepted that he entered Hong Kong illegally in September 2006, after his arrest in February 2008, on 18 April 2008 he lodged an asylum claim with the Hong Kong authorities.  That claim was closed on 31 October 2008.  On 5 May 2010 he lodged a ‘torture’ claim, namely a claim that it he was deported to Pakistani he feared that he would be tortured.  In the first week of November 2010, he came to know that his father was seriously ill in hospital in Pakistani.  Immediately, he took steps to enable him to return to Pakistan, including renewing his Pakistani Passport.  However, he was informed by the Immigration Department that he would be charged with having remained in Hong Kong without lawful authority, having entered Hong Kong unlawfully.  That was in consequence of a policy of the Immigration Department to prosecute those who had previous criminal offences in respect of Immigration matters, whereas the appellant would have been repatriated to Hong Kong had he not committed such an offence.

A consideration of the submissions

6.  As the magistrate noted in sentencing and then in review proceedings, in determining the appropriate sentence to impose upon the appellant the court had given a discount of 3 months’ imprisonment specifically to reflect humanitarian considerations.  In my judgment that discount was generous.

Conclusion

7.  Accordingly, in the result I am satisfied that there are no merits in the appellant’s grounds of appeal against sentence which is dismissed.