HKSAR v. Maqbool Araf

HCMA178/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 178 OF 2000

(On appeal from ESCC 3506/1999)

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J U D G M E N T

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1. The appellant was charged with using a false instrument, i.e. a copy of a police memo which he knew or believed to be false, which he used with the intention of inducing an immigration officer to accept it as a copy of a genuine instrument, and by reason of doing so, or so accepting it, to do an act to his own or another's prejudice. He was further charged with three charges of entering Hong Kong illegally although he had been prohibited from doing so by a Deportation Order dated 19 August 1996.

2. The magistrate heard evidence from the officer who took the appellant to the airport and deported him. He was satisfied on the evidence taking into account the evidence given by the appellant denying any knowledge of the deportation, that the appellant had the deportation explained to him, a copy of it was served upon him, he signed on the back of the deportation order, and that he was checked-in to board the aircraft, by the immigration officer as a deportee on a flight to Pakistan.

3. The magistrate was satisfied that the appellant was the person who was so deported, and was satisfied on all of the evidence as I have said, bearing in mind any doubts which the appellant may have raised in his evidence, that the appellant knew he was being deported. The magistrate also was satisfied that the memorandum produced by the appellant at the Immigration Department to the immigration officer was a false copy. He considered the explanation that the appellant gave in evidence. He did not believe him. In disbelieving him, he did not infer guilt; it merely removed from the evidence material upon which he could look for doubts in respect of the prosecution case.

4. The magistrate was satisfied that in all the circumstances the appellant could be inferred to know that the copy was a false document and that he relied upon it in his application for extension of visa to the Immigration Department. He was further satisfied that on each of the three occasions after the deportation in November 1996, the appellant re-entered Hong Kong, having found that he was sure beyond reasonable doubt that the appellant knew of the deportation. He was also sure that the appellant knew he was re-offending each time he breached that order by re-entry.

5. This appeal is not a re-hearing of the case before the magistrate. Since the appellant was unrepresented, I considered with care all the proceedings before the Magistrates' Court. I am satisfied that the magistrate has acted as he ought in his approach to this matter and his consideration of each witness and each piece of evidence. The appeal against conviction is dismissed.

6. As to the sentence, the magistrate considered a number of authorities. He referred in respect of the breach of deportation order, to R. v. Talaw, MA910/1996 and R. v. Huong Dinh Huy, MA1530/1996. In each of those cases, 15 months was held appropriate as the sentence for breach of deportation order. The magistrate took his starting point of 12 months' imprisonment, which was lower than the amount recommended by those cases. In respect of the 1st count of using a false document, the magistrate properly took into account the serious nature of that offence. In respect of the three counts of breach of the deportation order, the magistrate found they were of the same nature, done for the same purpose and that a concurrent sentence was appropriate. He therefore imposed a sentence of 12 months' imprisonment on each of those charges, to run concurrently. He found, however, that the 1st count of using a false document was completely different in nature and committed under different circumstances. In such circumstances, a consecutive sentence was appropriate.

7. I have considered whether or not , having made the two sentences consecutive, the totality of the two sentences was too high. These were serious and deliberate offences committed against the immigration laws of this territory. I cannot say the magistrate was in any way in error.

The appeals against sentence are dismissed.