HKSAR v. JOHIR MOHAMMED

HCMA 224/2018

[2018] HKCFI 2526

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 224 OF 2018

(ON APPEAL FROM STCC 269 OF 2018)

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J U D G M E N T

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1.  The appellant was found guilty of an offence of “Taking employment while being an illegal immigrant” [1] after trial by Deputy Magistrate Jolie Chao (“the magistrate”). He was sentenced to 22 months and 2 weeks’ imprisonment.

2.  The appellant now appeals against his sentence.

3.  The appellant was represented by counsel Ms Elizabeth Herbert (privately briefed) in the court below.

The facts

4.  The appellant entered Hong Kong unlawfully on 22 January 2014 and was arrested by the Police on the same day.  He was referred to the Immigration Department on 24 January 2014.

5.  On 26 February 2014, the appellant was released on recognizance.  He knew that he was prohibited from taking up any employment, paid or unpaid, in Hong Kong.

6.  About 1:35 pm on 17 January 2018, a team of immigration officers raided the flat in question (“the Flat”). The Flat was apparently under renovation at the time.  Only door frames remained with no doors fitted.  Construction materials and tools were lying around.

7.  An immigration officer (PW1) found the appellant in one of the rooms in the Flat.  PW1 saw the appellant, who was wearing a pair of labour gloves, squatting down and repeatedly plastering cement on a wall with a trowel.

8.  Once PW1 revealed her identity, the appellant immediately put down the trowel, took off his gloves and fled.  He was stopped by another immigration officer (PW2).  After checking the appellant’s identity, PW2 cautioned him for illegal employment.  The appellant remained silent.  His grey waist bag was later found inside the Flat.

Mitigation

9.  The appellant is now 50 and has a clear record.  He is married with 2 children (daughter aged 7 and son aged 4).  His family members reside in Bangladesh.  The appellant is a non-refoulement claimant.  He suffers from diabetes and high blood pressure.  Before coming to Hong Kong, he has worked in Singapore for 17 years.

The magistrate’s reasons for sentence

10.  In sentencing the appellant, the magistrate gave her reasons[2] as follows:

“ 10. The Defence urged me to take into account that this was a single incident, and there was no evidence that the Defendant had received any remuneration in this case. However, nothing advanced were material in mitigation.

11. The Court of Appeal in HKSAR v. Usman Butt & Another [2010] 5 HKLRD 452 reviewed the authorities and laid down the guideline sentence of 15 months’ imprisonment upon a plea of guilty in relation to section 38AA offences.

12. In the present case, the Defendant was convicted after trial. There was no reason for me to depart from the guideline sentence in this case. Applying the above, and there being no other mitigating factors, the Defendant was sentenced to 22 months and 2 weeks of imprisonment accordingly.

Review

13. On 19 April 2018, the Defendant applied for a review against the sentence imposed on him. During the review hearing, the Defendant, who appeared in person, urged me to reduce his sentence as he suffered from hypertension and diabetes, and he had two young children at home. He admitted he was guilty and he wished to return home as soon as possible.

14. Having carefully considered his application and the abovematters, I was of the view that none of the matters put forward by the Defendant amounted to mitigating factors which warranted a deduction in sentence.  Accordingly, I confirmed my decision and the sentence imposed on him.”

Grounds of appeal

11.  The appellant acted in person in the appeal hearing.  He submitted a letter to me in court.  In gist, he claimed that he misunderstood the charge and wrongly pleaded not guilty to the charge.  He wishes to change his plea to one of guilty because he now realizes what he did was illegal.  He asked the court to reduce his sentence because he wife is sick and he needs to go home to look after his children.  He begged the court to temper justice with mercy.

My considerations

12.  The magistrate was aware of the appellant’s health conditions and family circumstances.  Clearly, neither constituted valid mitigating factors in terms of sentencing.  Regarding his “wrong” not guilty plea, the appellant was represented by counsel at trial.  It was obviously his decision to plead not guilty to the charge.  Even in his application to review his sentence, he told the magistrate that he did not go to the Flat to work, but tolook for a place on a lower floor to rent[3].  He must accept full responsibility for his own decision.  It is no use to ask the court now to let him plead guilty to the charge (with a feeble hope to get a discount in his sentence).  Our criminal justice system most certainly does not work this way.

13.  The appellant’s sentence is correct and I see absolutely no reason to interfere with it.

14.  I have sympathy for people who need to escape from their homeland for various reasons (political, religious or otherwise) to seek refuge in a foreign territory.  Hong Kong owes those people nothing but has generously extended its hospitality to them.  The bottom line is they need to behave themselves and obey the law here.  This is certainly not one bit too much to ask for and is the least those people could do in return for the protection offered to them by Hong Kong.

15.  Ms Chit for the respondent has fairly drawn my attention to the issue of deduction for administrative detention[4].  The appellant was under administrative detention for a period of 36 days in early 2014 when he illegally entered Hong Kong.  In other words, the administrative detention took place 4 years prior to the present offence. Furthermore, thedetention was unrelated to the present offence.  As such, it does not trigger the operation of section 67A(1A) of the Criminal Procedure Ordinance (Cap 221)[5].  The issue of administrative detention was not raised by the appellant's trial counsel during mitigation either.  I simply see no reason why I should exercise my discretion to reduce the appellant's sentence for the administrative detention.

16.  This appeal has no merits and must be dismissed.