HKSAR v. MIRZA MOHAMMAD SHABBIR

HCMA318/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.318 OF 2002

(ON APPEAL FROM TMCC 593 OF 2002)

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J U D G M E N T

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1. The appellant was convicted on his own plea before a magistrate of possession of an identification card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap.177. He was also convicted of two offences of using that identification card; once when he produced it to the arresting police officers and once when he used it in an attempt to apply for a construction safety certificate and seek employment. He was also convicted of an offence of breaching his conditions of stay by overstaying in Hong Kong, without the Director of Immigration's permission and contrary to section 41 of the Immigration Ordinance, Cap.115. In respect of those offences, he was sentenced to 15 months' imprisonment for each of the identification card offences and for three months' imprisonment in respect of the Immigration Ordinance offence. All sentences were ordered to be served concurrently and that resulted in a totality of sentence of 15 months' imprisonment. He appeals against those sentences today before me.

2. He does not say that the magistrate's sentences were too severe or wrong in principle. The appellant simply advances humanitarian reasons in seeking a reduction of his sentences.

3. In about August 2001, some months before his sentencing by the magistrate, his wife passed away. Some time after that, apparently, his sister also passed away. The result of that was that his two children in Pakistan are now looked after by his aged parents. He says their life is difficult and their education is threatened. He simply seeks to be released so as to be able to return to Pakistan and render assistance to his parents and children.

4. In the appellant's circumstances, I have no doubt that some difficulty is occasioned to his family in Pakistan as a result of his imprisonment in Hong Kong. This is the sort of difficulty that many families of Pakistani overstayers in Hong Kong, who come to Hong Kong to seek work, experience when the overstayers are sent to prison. Indeed, it is the same sort of difficulty generally experienced by the families of a large number of people who are imprisoned in Hong Kong.

5. Before grounds of a sufficient humanitarian basis can be relied upon in seeking early release, it must be established by the prisoner relying upon those grounds that his imprisonment causes more than the usual difficulties, inconvenience and perhaps even hardship to his family members. He must establish that his imprisonment causes such extreme hardship that the genuine and important interest of the Hong Kong community in having offenders serve their periods of imprisonment becomes secondary to the prisoners' own personal concerns. In short, he must show that his family's difficulties are such that in justice and fairness his sentence of imprisonment should be put aside or shortened so as to enable him to render assistance to his family, and that the interests of the Hong Kong community become secondary to that.

6. I appreciate that the condition of the family members of Pakistani prisoners in Hong Kong, where those families are still in Pakistan, may become difficult and some hardship may be experienced by them. But in the circumstances of the present case, even accepting what the appellant has to say, any difficulty caused to his family is not such extreme hardship so as to properly allow his sentence to be reduced or shortened in any way. Accordingly, the appeal is dismissed.