HKSAR v. BASHIR, SHAKEEL

HCMA702/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 702 OF 2015

(ON APPEAL FROM STCC 5018 OF 2012)

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REASONS FOR JUDGMENT

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1. The appellant pleaded guilty to a charge of 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, Laws of Hong Kong.

2. For this offence, the learned Magistrate imposed a term of 15 months, which was ordered to run consecutively to the term of 10 years that the appellant was serving for another offence of trafficking in a dangerous drug.  

3. The appellant now appeals against the sentence. 

4. What happened in this case was that the appellant had entered Hong Kong illegally and was arrested by the police in late October 2009.  He was handed over to the Immigration Department in early November when he made a “torture claim”.  While his application was being processed, the Department released the appellant on a recognizance on 11 November 2009. 

5. After his release, in February 2011, the appellant was arrested and charged with the offence of trafficking in a dangerous drug to which he pleaded guilty in August 2012.  That was how he received the sentence of 10 years.  Following that, in October 2012, the appellant was finally charged with the present offence, but no plea was taken from him as the result of his torture claim was still pending.  In August 2015, the appellant withdrew his claim and later pleaded guilty to the illegal remaining offence on 28 October 2015, thereby receiving the 15 months’ imprisonment.  The Magistrate ordered a consecutive sentence. 

6. The above information was helpfully provided by Miss Fung, Senior Public Prosecutor, in her written submission. 

7. At the material time, the appellant was 29 years of age and had a clear record.  Imposing the term of 15 months, the magistrate pointed out that the appellant had committed a serious offence while being released on a recognizance, therefore, even taking into account of the totality principle, the sentences should be served consecutively. 

8. The appellant was not legally represented for the appeal, but he had written to the Court prior to the hearing.  The appellant first complained that the 15 months’ term was manifestly excessive (letter dated 30 October 2015).  He then asked mainly for a concurrent sentence, and also that the period of detention from 30 October 2009 to 11 November 2009 should be deducted.(letter dated 7 December 2015)  He further raised some issues about a “Newton enquiry” and his personal particulars in the charge sheet.  His reasoning was rather confusing and the point clearly unmeritorious in relation to the appeal.  There was a 3^rd letter (9 December 2015), but the appellant made no additional grounds except saying that he would represent himself at the appeal and conduct the mitigation in person.  

9. When addressing the Court in person, the appellant simply asked for a concurrent sentence. 

10. The respondent submitted that this appeal should be dismissed.  Miss Fung argued that the 15-month imprisonment after plea for the illegal remaining charge was in accordance with the sentencing guideline stated in R v So Man King [1989] 1 HKLR 142.  In terms of the period of detention between 31 October and 11 November 2009, she pointed out that was not a period of detention immediately prior to his first appearance in court, so the appellant would not be entitled to the deduction. 

11. My view is, Miss Fung was clearly right about the 15-month sentence for the illegal remaining charge, which would be the usual sentence for such an offence.  No valid complaint could be made against this term.  I also accept Miss Fung’s submission on the deduction point, the operation of which was governed by section 67A(1A) of the Criminal Procedure Ordinance, Cap 221.

12. On the issue of consecutive sentences, Miss Fung mainly relied on the case of HKSAR v Pham Van Tuan CACC 272 of 2010 to argue that the appellant’s sentences should run consecutively.  She pointed out that in Pham Van Tuan’s case, a 6-month imprisonment for the possession of dangerous drug was ordered to run wholly consecutively to the other sentences, i.e. unlawful remaining and breach of deportation order.

13. A reading of the judgment of the Court revealed that the Court of Appeal had endorsed the need to consider the totality principle, but the focus of the discussion was on the two immigration offences of unlawful remaining and breach of deportation order.  After analyzing the nature of the 2 immigration offences, the original sentences of 30 months was reduced to 23 months.  Regarding the 6 months for the drug offence, the Court of Appeal simply stated that it “had to” run consecutively to the 23 months.  

14. In our case, the sentence for the drug related offence was 10 years and the illegal remaining 15 months.  These are much longer sentences than what the appellant was facing in Pham Van Tuan.  I don’t believe the authority of Pham Van Tuan supports the proposition that the totality principle can be disregarded if a defendant has committed unrelated offences and one of them is as serious as trafficking in drugs. 

15. The question to consider was whether the appellant’s sentences should run wholly or partially concurrently.  In this regard, I could not ignore the fact that the appellant, when given the freedom of a recognizance to remain, yet got involved in drug trafficking in Hong Kong, the very city he asked to be allowed to stay and live.  Considering the circumstances, the 2 sentences should not be allowed to run wholly concurrently. 

16. I had therefore allowed the appeal, but only to the extent that 6 months of the 15 months is to run concurrently, and 9 months to run consecutively with the sentence he is currently serving in HCCC333/2011.