HKSAR v. SHAIKH. NIZAMUDDIN

HCMA 658/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 658 OF 2013

(ON APPEAL FROM STCC NO. 1945 OF 2013)

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JUDGMENT

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Introduction

1. The appellant was charged with taking employment while being a person in respect of whom a removal order was in force, contrary to sections 38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap 115.  He pleaded guilty to this offence before Magistrate Ms Amy Chan at Shatin Magistracy on 14 June 2013 and on that day was sentenced to 14 months and 21 days’ imprisonment.  Leave was granted to the appellant by Tong J for an extension of time in which to appeal and he now appeals against that sentence.

Background to the Offence

2. The appellant admitted that he arrived in Hong Kong on an Indian passport on 6 October 2008 and was permitted to remain here as a visitor for 14 days until 20 October 2008.  His permission to remain was subject to a term prohibiting him from taking up employment in Hong Kong, whether paid or unpaid.  However, he did not leave Hong Kong within the period he had been allowed to remain and since 21 October 2008 he has overstayed in Hong Kong.  On 30 October 2008 he was arrested by the police and referred to the Immigration Department for investigation.  He was subsequently released on Immigration recognizance on 7 November 2008 after being detained for 9 days in immigration detention.  On 5 April 2013 a removal order was issued and served upon him on 17 April 2013 and that order remains in force to this day.  However, it has been suspended pending the processing of his Convention Against Torture Claim.

3. To complete the appellant’s story I am informed by the respondent that in September 2011 the Immigration Department waived the prosecution of the appellant for overstaying in Hong Kong and the appellant’s Convention Against Torture Claim is currently being processed.

4. In relation to the present offence, the appellant admitted that on 14 May 2013 he had been observed by Police Officers to be repeatedly unloading carton boxes from a vehicle in the parking lot of the 2/F of the Asia Airfreight Terminal at Check Lap Kok.  He, together with another person, was conveying these cartonboxes to an X-ray machine for security examination.  Upon subsequent investigation, the appellant admitted that he had been unloading goods from a vehicle.

5. On his plea of guilty, the magistrate was told by his counsel that the appellant was 34 years of age with both parents still alive and one elder brother and one younger sister.  As to how the offence came to be committed, the magistrate was informed that on the day of the offence the appellant and his friend were going to the airport to meet a person who was arriving from India.  In order to save on travelling expenses they accepted a lift in return for which they performed the work of unloading these carton boxes at the Asia Airfreight Terminal.  At the time of their arrest they had not been paid for the work.

The Magistrate’s Reasons for Sentence

6. The magistrate noted that the appellant had a clear record and did not dissent from the information provided to him on the appellant’s behalf as to how the offence came to be committed.  However, she noted that there was a sentencing guideline for this offence as set out by the Court of Appeal in HKSAR v Usman Butt [2010] 5 HKLRD 452 in which the tariff for this offence was affirmed as being at 15 months’ imprisonment upon a plea of guilty.  The magistrate said she was willing to deduct the 9 days spent by the appellant in Immigration Department in administrative detention and that is how she arrived at her ultimate sentence of 14 months and 21 days’ imprisonment.

The Grounds of Appeal

7. In a letter to the Court dated 15 October 2013 the appellant claimed that he had been arrested for a rape case and remanded in custody from 22 March to 17 May 2011.  I am informed by the respondent that these days are correct and that his case did not proceed to trial.  The appellant wishes to have the period he was remanded in custody in respect of this charge to be deducted from his sentence for the taking employment offence.

8. Before me today, the appellant referred to this period that he spent in custody and the difficulties that he encountered upon his release as a result of having been wrongly charged with the offence of rape.  He asked for the Court’s forgiveness and sought leniency, praying in aid that he has a clear record.

Discussion

9. There is no merit in this appeal.  The sentence imposed upon the appellant was in accordance with the law and the magistrate has already conferred on the appellant a benefit of 9 days reduction in his sentence to allow for his administrative detention.  His detention pursuant to his rape charge was completely unrelated to the present case and there is no legal basis for this Court to grant the appellant the reduction in sentence that he seeks. The appeal against sentence is, therefore, dismissed.