HKSAR v. ZAHEER AHMED

HCMA151/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 151 OF 2012

(ON APPEAL FROM STCC NO. 5418 OF 2011)

----------------------

----------------------

-------------------------

JUDGMENT

-------------------------

1. The appellant appeals against a sentence of 14 months’ imprisonment imposed on 15 February 2012 after he pleaded guilty to one offence of “Taking employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully, contrary to sections 38AA(1)(A) and 38AA(2) of the Immigration Ordinance, Cap. 115.

2. The appellant asserts today that the sentence is too severe.

The Facts

3. On 22 November 2011, Police, Labour and Immigration officers conducted a joint exercise in Tung Choi Street in Mongkok.  The appellant was apprehended after he was seen pushing a trolley loaded with metal bars, along Tung Choi Street towards Nathan Road.  The appellant failed to produce any travel document when requested to do so but said, “I work here, no problem, I have paper.”

4. Further investigation revealed that the appellant had entered Hong Kong illegally from the Mainland on 6 June 2009 and was arrested on 7 June 2009.  On that occasion his case was referred to the Immigration Department.  On 26 June 2009, he was released by the Immigration Department on a recognizance, having being detained for 20 days.

5. Before the magistrate the appellant’s counsel submitted in mitigation that the appellant came to Hong Kong in 2009 due to the political and religious problems in Pakistan.  The magistrate was told that the appellant and his family had suffered in the religious wars in that country.  The appellant’s father, two brothers and two uncles were killed, and only his mother and sister survived.

6. As to his mother the magistrate was told that she was then 70 years of age and in hospital because of a heart problem and Parkinson’s disease.

7. Apart from his family’s circumstances the magistrate was told that the appellant was also suffering from a heart condition, high blood pressure and had some mental problems.

8. As a consequence of those submissions the magistrate adjourned sentencing pending the preparation of psychiatric and the medical reports.

9. The reports when prepared revealed that the appellant’s health condition was satisfactory.  He was not suffering from any serious illness, nor psychiatric disorder.

10. Towards the end of his mitigation counsel on behalf of the appellant requested that the magistrate deduct from any sentence imposed the period of administrative detention of 20 days.  The magistrate acceded to that request.

The Appeal

11. The magistratetook a starting point for sentence of 15 months’ imprisonment, taking into account the period of administrative detention he reduced that to one of 14 months’ imprisonment.

Starting Point

12. The starting point which the magistrate adopted was based on the observations of the Court of Appeal in HKSAR v Usman Butt [2010] 5 HKLRD 452.  The Court of Appeal had in that decision indicated that a sentence of 15 months’ imprisonment after a plea of guilty is normally justified for this offence.  When sentencing, the magistrate referred to the health condition of the appellant’s mother.  He did not consider this to be a significant nor valid mitigating factor such as would result in a further reduction in sentence.  In doing so he referred to a passage in Archbold Hong Kong 2012, at page 1689 paragraph 2 :

“Humanitarian consideration could not be found in cases where a relative of the illegal immigrant, even a close relative ... had fallen ill by the time the illegal immigrant came to Hong Kong.”

13. He also referred to an earlier unreported decision in HKSAR v Guo Jingxing (HCMA15/2006) :

“The applicant was aware that his mother had already suffered one stroke before he entered Hong Kong on this occasion, with a view yet again to breach the laws of Hong Kong. He chose to take the risk that her health might decline.”

14. I am satisfied that the approach adopted by the magistrate was entirely proper in the circumstances.  He took into account all relevant mitigating factors and sentenced the appellant from an appropriate starting point.

15. Before me today the appellant has not criticized the approach adopted by the magistrate.  He requested to me to reduce his sentence on humanitarian grounds.  He again seeks to pray in aid in this regard his failing health.

16. With respect to the appellant it is apparent that his health is not affected in such a way as would justify such a course.  This was a matter raised in mitigation before the magistrate.  It was investigated and found to be without merit.  There is no basis upon which it would be proper for me to interfere with the decision of the magistrate and his appeal is dismissed.