HKSAR v. MUGHAL ZIA UR REHMAN

HCMA 403/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 403 OF 2011

(ON APPEAL FROM STCC 1107/2011)

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BETWEEN

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J U D G M E N T

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1.  The Appellant was convicted after trial in the Magistracy of one count of taking employment while being a person who remains in Hong Kong without authority of the Director of Immigration after having landed in Hong Kong unlawfully, contrary to s. 38AA(l)(a) of the Immigration Ordinance, Cap. 115. The Appellant was sentenced to 2l months’ imprisonment. He appealed against both conviction and sentence.

2.  The Appellant was represented at trial, although he appeared in person on the appeal.  It was an admitted fact at trial that the Appellant had landed in Hong Kong unlawfully on 26 February 2009, that a recognizance was issued to him on 19 March 2009 and that he knew he should not take up any employment, whether paid or unpaid.

3.  The sole prosecution witness was a police constable who said that on 23 February 2011 at around 11:30 a.m. he watched the Appellant, who was wearing a pair of labour gloves, pulling electric wires on the ground, tidying up a spotlight, assembling the spotlight by inserting it into an iron rod and then affixing the spotlight and the iron rod to an iron frame on a street stall in Tung Choi Street.

4.  The Appellant gave evidence and denied the allegations of the constable.  He said that he was simply waiting for his friend (the 2^nd Defendant) before he was intercepted.  He claimed that he was unable to reach the iron frame of the stall, which was about 93 inches from the ground because his height was only 5 feet 7 inches.  He contended that after his interception by the officer he was all along talking on his mobile phone until he reached the police vehicle.  The Appellant was asked in cross-examination when the hands-free device and mobile phone were taken from him by the police and he provided a number of versions as to when this occurred, some of them conflicting.

5.  The Magistrate considered and, ultimately rejected the evidence of the Appellant.  In his Statement of Findings, he set out his reasons and pointed out those areas which he found incredible.  He was satisfied that the prosecution had proved all the elements in the charge beyond reasonable doubt and he accepted the police constable as an honest witness on whose evidence he could rely.  The Magistrate gave himself the appropriate directions.

6.  No specific grounds of appeal were filed by the Appellant, who, at the hearing, repeated the matters relied on at trial.  He claimed that the photographs put before the court were not evidence that showed that he was working there, nor did the photos show that he had any labour gloves on his hands.  He said he had been living for two years in Mongkok and the place of his arrest was about 2 minutes walk from his home.  He claimed that he was only visiting his home, he was not assembling any light.

7.  He complained that because PW1 saw him for only 3 minutes and did not take any photographs that there was no evidence to prove anything against him.

8.  I am satisfied that the Magistrate considered all the matters that were put before this court.  He was entitled to rely on the evidence of the police constable.  I could not find any area where the Magistrate erred and accordingly I dismiss the appeal against conviction

9.  For his appeal against sentence, the Appellant did not file specific grounds, but relied on the general ground that the sentence was too severe.

10.  When sentencing, the Magistrate noted the Appellant’s clear record in Hong Kong, his age which was 30, and the fact that his family was in Pakistan, but no other matters were advanced in mitigation.

11.  The Magistrate referred to and relied on HKSAR v Usman Butt and others [2010] HKLRD 452 which indicated that the guideline sentence for an offence under s.38 AA(1)(a) and (b) of the Immigration Ordinance after trial was 21 months’ imprisonment.  As there was no mitigation put before the Magistrate which would merit a discount, a 21 months’ sentence was imposed.

12.  No matters were raised by the Appellant on this appeal which showed that the sentence was wrong in principle or excessive, nor were any matters advanced which were personal to the Appellant and which would justify a discount on the sentence.

13.  The appeal against sentence is dismissed.