HKSAR v. RAJA MUHAMMAD ZUBAIR MUKHTAR

HCMA 46/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 46 OF 2017

(ON APPEAL FROM KCCC NO 3736 OF 2013)

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JUDGMENT

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1.  The Appellant was charged with one count of ‘remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong”[1]. The Appellant, who was represented by Mr Allan of Counsel, pleaded guilty before Deputy MagistrateEric Yao Kwok‑sun, and was sentenced to 18 months’ imprisonment on 30 December 2016. The Appellant was not represented in the present appeal proceedings.

The prosecution case

2.  On 21 September 2013 at about 1:30 pm, the Appellant was seen acting suspiciously outside Shop No 97 in Chungking Mansions, Tsim Sha Tsui.  The Appellant was brought back to his reported address at No 2 Hau Fook Street in Tsim Sha Tsui.  The Appellant later claimed that he was an illegal immigrant and his passport was lost.  On 22 September 2013, the Appellant admitted under caution that he sneaked into Hong Kong from Shenzhen in November 2012.

Grounds of appeal against sentence

3.  The Appellant relied on the wording in Form 102 which he filed on 4 January 2017.  In the appeal hearing, the Appellant claimed that he did not realize that there was less discount for his late guilty plea.  He would like to have further reduction in sentence.  When asked, the Appellant said his Counsel had explained to him about the situation, but yet the Appellant maintained that he was not aware that he would get less discount because of his late plea.

Considerations

4.  In his reasons for sentence, the Magistrate noted that the Appellant had one previous record of breach of the condition of stay in June 1995 with the 3‑month sentence suspended for 3 years.  He noted all the mitigations put forward by Defence Counsel who even suggested to the Magistrate to pass a suspended sentence. The Magistrate adopted the guideline promulgated in The Queen v So Man-king [1989] 1 HKLR 142.  As to the discount in sentence upon guilty plea, the Magistrate remarked that:

“As the trial of the matter was fixed by Court No 1 of this Magistracy on 12^th December 2016, the new guilty plea discount set out in Ngo Van Nam applied to the present case. That is to say, for the Defendant’s guilty plea entered before me on 30^th December 2016, I should only give him a one fifth discount on sentence. The sentence was therefore reduced to 18 months’ imprisonment.”[2]

5.  The Court of Appeal in Ngo Van Nam made it clear that:

“ Subject to the overriding discretion of the judge in sentencing, a defendant who gives the court or the prosecution an indication of a plea of not guilty at the Plea Day after which trial dates are fixed, who then indicates to the court or the prosecution before the first day of trial that he wishes to plead guilty, is to be afforded a discount between 25% and 20% of that taken as the starting point for sentence.”[3]

6.  I am of the view that the Magistrate was entitled to exercise his discretion with regard to the time at which the indication of plea was given and to all the other relevant circumstances.  There is nothing to suggest what the Magistrate did was wrong in principle.

Conclusion

7.  For the reasons given above, the appeal against sentence is dismissed.