HKSAR v. Muhammed ARSHAD

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 69/2001

(On appeal from SPCC 4818 of 2000)

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JUDGMENT

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Introduction

1. On 28th November 2000, at the San Po Kong Magistracy, the appellant faced the following two charges:

(1) Attempt Misleading a Police Officer contrary to section 159G of the Crimes Ordinance, Cap. 200 and section 63 of the Police Force Ordinance, Cap. 232; and

(2) Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115.

The appellant pleaded guilty to the 1st charge and was sentenced to 2 months imprisonment. He was convicted after trial on the 2nd charge and sentenced to 21 months imprisonment. Both sentences were ordered to run concurrently. A one-month suspended imposed in SPCC 8120/1999 was ordered by the learned magistrate to be activated and to run consecutively with the 21 months, making a total of 22 months imprisonment.

The appellant's application to review the sentence was rejected by the learned magistrate. The appellant now appeals against the sentence.

Grounds of appeal

2. The appellant basically asks the Court to have mercy on him, to reduce the sentence on account of his sad personal circumstances. He recounted that he had suffered from tension and sadness after his old mother had died. He said that his children's education was being interrupted due to his absence. He also submitted a document purporting to be a medical certificate on his wife, saying that she was suffering from chronic liver disease and was in critical condition back in December 2000.

Reasons for sentence

3. The learned magistrate in sentencing the appellant had set out the appellant's family circumstances. The appellant was 34 years old and a tailor in his native country Pakistan. He had a wife, young children and (at that time) an aged mother. He came to Hong Kong to earn money to support his family. The learned magistrate had considered all the sentencing options and found no strong humanitarian considerations to depart from the guidelines in So Man King [1989] 1 HKLR 142. After taking into account that the 15 months suggested for this offence was on a plea of guilty, the learned magistrate adjusted the appropriate sentence to one of 21 months after trial as the correct starting point.

4. The only difference now is that his aged mother has since passed away and he claimed that his wife is ill.

5. Ms. Chan for the Respondent submitted that the sentences were neither wrong in principle or excessive. There were no compelling circumstances nor strong humanitarian grounds to reduce the sentence.

6. I agree with the observations of Ms. Chan. The appellant chose to leave behind his aged mother, young children and wife when he came to work in Hong Kong illegally. The fact that his aged mother had passed away, that he had young children at home do not constitute strong humanitarian grounds. As to the alleged illness suffered by the wife, there is no acceptable proof before the court. I am not prepared to accept on face value a piece of paper saying someone is critically ill to find that there are strong humanitarian grounds to reduce the sentence.

7. The appeal is dismissed.