HKSAR v. JUNAID AHMED

CAC C 79/2017

[2018] HKCA 159

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 79 OF 2017

(ON APPEAL FROM DCCC NO. 45 OF 2017)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  The appellant (Junaid Ahmed), born in 1983, came to Hong Kong from Pakistan with his family in 2002 to escape persecution and he was granted mandated refugee status by the United Nations High Commissioner for Refugees (UNHCR) 7 days after his arrival.  The appellant has since been waiting for resettlement in another country for over 15 years.

2.  Since 2008, the appellant had been convicted of a number of offences in Hong Kong, including theft (2008, fined $300), burglary (2009, 20 months’ imprisonment), possession of dangerous drugs (2010, 4 weeks’ imprisonment), robbery (2011, 2 years’ imprisonment), and attempted robbery (2013, 5 years’ imprisonment).

3.  About one month after his release from prison, i.e. on 15 August 2016, the appellant entered a restaurant in Central and stole therein one safe, one laptop, 4 bottles of wine and cash of HK$4,500.  The appellant was arrested on 30 November 2016 and subsequently charged with the offence of burglary.

4.  On 22 March 2017, the appellant pleaded guilty to the burglary charge before Judge G Lam in the District Court and was sentenced to 22 months’ imprisonment.  The judge adopted the conventional starting point for non-domestic burglary of 2 years and 6 months’ imprisonment and increased it by 3 months to 33 months, not because of the appellant’s previous convictions, but because of his immigration status based on the decision of the Court of Appeal in HKSAR v Norena Gutierrez Cristhian Andres, unreported CACC 319/2014, 30 April 2015 which was approved and applied in HKSAR v Shah Syed Arif [2016] 4 HKLRD 664, HKSAR v Azad Mohammad Farhan, unreported CACC 173/2015, 15 July 2016 and HKSAR v Zunduidavaa Zinameder, unreported CACC 235/2016, 22 December 2016.  The judge reduced the enhanced starting point by one-third to 22 months’ imprisonment because of the guilty plea.

5.  At the time of sentencing, the appellant was serving another sentence of 10 months’ imprisonment imposed on 29 December 2016 for the offences of obtaining property by deception and theft which were committed on or about 2 September 2016 when the appellant, having stolen someone else’s credit card, used the credit card to purchase three bottles of brandy valued at about HK$6,700.  The judge ordered the 10 months’ imprisonment to be served consecutively to the sentence of 22 months’ imprisonment for the burglary offence.

6.  The appellant sought leave to appeal against sentence and was granted leave by Macrae JA on 28 November 2017 to argue the following two grounds only, namely:

(1) The appellant was a mandated refugee, and not a torture claimant and the judge was wrong to consider his immigration status as an aggravating factor; and

(2) The judge erred in failing to consider the totality of sentence when he ordered the 22 months’ imprisonment to be served entirely consecutively to the 10 months’ imprisonment imposed on 29 December 2016.

The Argument

7.  Mr Randy Shek, on behalf of the appellant, did not agree, but accepted the principles set out in Norena Gutierrez Cristhian Andres, Shah Syed Arif, Azad Mohammad Farhan and Zunduidavaa Zinameder of enhancing a defendant’s sentence because of his immigration status.  He argued, however, that such principles only applied if the defendant is a torture claimant.

8.  Mr Shek drew a distinction between a torture claimant and a mandated refugee in that the Director of Immigration has the power to detain a torture claimant pending final determination of his right to remain in Hong Kong for protection whereas a mandated refugee’s right for protection has been established and is therefore not liable to be repatriated.

9.  Mr Shek emphasized that, unlike torture claimants, the appellant, as a mandated refugee, had already been determined to be entitled to protection under the established policy of the Director of Immigration.  The appellant is unable to leave Hong Kong because he is waiting for resettlement by UNHCR, a process completely out of his control.  Mr Shek suggested that the appellant’s ability to remain in Hong Kong and at liberty is not, or at least to a much lesser extent, a “privilege” as the Director of Immigration is obliged to allow him temporary refuge in Hong Kong.  Mr Shek also suggested that the offences committed by the appellant were not “particularly serious”.

10.  Mr Shek pointed out the difficulties that the appellant faces as a mandated refugee when he is unable to function economically through gainful employment.  Mr Shek further pointed out the appellant’s personal difficulties when he has a drinking problem and is suffering from a major depression.  Mr Shek argued that such personal difficulties constitute a mitigating factor.  Mr Shek relied on the observation of Cheung J (as Cheung CJHC then was) in GA and ors v Director of Immigration, HCAL 10/2010, unreported, 6 January 2011, in which the appellant was one of the applicants for a judicial review seeking the right of screened-in torture claimants and mandated refugees to work in Hong Kong:

“9. JA (the appellant) is a Pakistani national. He is in his mid-20s, single. He and his family fled Pakistan for Hong Kong and arrived on 1 October 2002 to escape religious persecution in their home country. They claimed protection as refugees immediately upon arrival. They were detained for 7 days until they were mandated as refugees by the UNHCR on 7 October 2002. Since then, JA has been remaining in Hong Kong on recognizance.

10. At one stage, arrangements were made by the UNHCR to resettle JA to Canada, but the plan did not materialize because JA was suspected of and charged for committing a rape in 2004 even though the charge was later withdrawn. JA ran into difficulties with the law and was convicted on 3 occasions in 2008, 2009 and 2010 for theft, burglary and possession of dangerous drugs respectively. As a result, a deportation order was issued against him on 11 December 2009. His criminal convictions have substantially affected his chances of overseas resettlement.

11. According to Dr Mistler, because of his idling in Hong Kong for the past 8 years, JA ‘feels alone, helpless, useless, his brain foggy’ and he ‘lives in the darkness’; he is suffering from a major depression.”

11.  Mr Shek argued that the judge had not taken into consideration the appellant’s difficult personal circumstances and further pointed out that when sentencing the appellant, the judge said:

“Notwithstanding the totality principle, I order the sentence in the present case to run consecutively to the existing sentence in KCCC 4501/2016”.

12.  Mr Shek suggested that such comment indicated that the judge had wrongly dismissed the need to consider the totality principle.  Mr Shek further complained that the judge had not explained why he considered suitable to impose entirely consecutive sentences on the appellant.  Relying on HKSAR v Leung Ting Fung & Anor [2015] 1 HKC 290, Mr Shek suggested that the judge should have stepped back and taken a global view of the total sentence for the whole of the appellant’s criminal conduct.

13.  Mr Shek argued that if the two offences committed by the appellant were to be dealt with at the same time, the judge could have ordered part of the sentences to run concurrently although he did accept that it was within the judge’s discretion to impose consecutive sentences as he did.

Discussion

(a)   Refugee status as an aggravating factor

14.  A visitor who commits a serious offence during his/her visit in Hong Kong itself can be an aggravating factor and if a foreigner comes to Hong Kong for the purpose of committing a crime, he or she can expect to be harshly dealt with as the courts must do what they can to deter such foreign criminals.  A torture claimant who commits an offence whilst waiting for his claim to be determined may also attract a heavier sentence and the rationale was explained by Macrae JA in HKSAR v Sandagdorj Altankhuyag & anor [2014] 1 HKC 206 at p 212:

“21. Where someone in the position of the 2^nd appellant deliberately sets out to commit a crime which is aimed at the very community which has afforded him the privilege of remaining at liberty while his claim is being considered, and when that crime also has the effect of tarnishing this City’s reputation for order and security, of which he seeks to avail himself, then that is a factor which is capable of aggravating his sentence for the crime”.

In making the comments as he did, Macrae JA did not distinguish between a mandated refugee and a torture claimant when he further commented at para 22:

“22. ... We do not say that someone sharing the 2^nd appellant’s status would aggravate his position in every case or in every crime. Obviously, there are crimes committed by refugees or torture claimants which do not affect the community at large or have any significant impact on Hong Kong’s reputation.” (Emphasis added)

Sandagdorj Altankhuyag was followed and applied in Norena Gutierrez Cristhian Andres, where the Court of Appeal (differently constituted) further explained:

“23. Underlying the court’s conclusion in Sandagdorj is the reality that without making an immigration claim this foreigner would have no right to remain in Hong Kong, indeed his continued presence here would in itself be unlawful. It is only because his immigration claim is being processed that he is permitted to remain in Hong Kong. This permission flows from Hong Kong complying with international obligations that it has freely accepted and the human rights provisions of the Basic Law.

24. But Hong Kong does not keep imprisoned a person who remains in Hong Kong pending the processing of his immigration claim. It does not do so because it sees itself, and wants to be seen by the rest of the world, as a society governed by the rule of law whose members place a high premium on the rights of the individual. One such right – perhaps Hong Kong’s most prized right – is the right of the liberty of the individual and Hong Kong extends this right to immigration claimants. As a consequence the immigration claimant will not just be allowed to remain in Hong Kong pending the resolution of his claim, but he will be given his liberty and permitted to live in the community until his claim has been processed.

25. By allowing him his freedom, Hong Kong exposes its residents to the risk that this person will not live a law abiding life whilst he awaits the processing of his claim. This is a risk of crime to which the Hong Kong community would not otherwise be exposed. There is also, as Macrae JA pointed out, a risk of reputational damage to Hong Kong as a safe and orderly world class city.

26. Analyzed in this way, punishing this category of offender more heavily than others is not to discriminate against him for being a foreigner. Rather, he is being punished more heavily by virtue of the fact that an element of his culpability is that he has caused harm to Hong Kong to which Hong Kong would not otherwise be exposed but for the fact that it has allowed him to remain in Hong Kong, and at liberty, pending the determination of his immigration claim. Seen in this way, there is nothing discriminatory in treating the circumstances of the offender’s immigration status as a factor aggravating his culpability and there is no infringement of the principle that everyone is equal before the law”.

15.  Whilst Norena Gutierrez Cristhian Andres and the other cases all related to defendants who were torture claimants and the appellant is a mandated refugee, we fail to see how such distinction could affect the approach to be adopted in sentencing someone with no right to stay in Hong Kong who chose to commit a serious offence that affect the community at large and has a significant impact on Hong Kong’s reputation.

16.  The appellant, as a mandated refugee, just like torture claimants, has no right to remain in Hong Kong and his continued presence could in itself be unlawful.  The appellant is permitted to remain in and move about freely in Hong Kong because he is waiting to be resettled in another country.  Such a permission flowsfrom Hong Kong complying with international obligations that it has accepted and the human rights provisions of the Basic Law and is indeed a privilege conferred upon the appellant by reason of the policy of the Director of Immigration to meet international obligations.

17.  As pointed out by Mr Derek Wong, Senior Public Prosecutor, for the respondent, all torture claimants are, just like refugees, in practical terms, able to remain in Hong Kong during the time when their claims are being processed (See Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 and HKSAR v Usman Butt and Others [2010] 5 HKLRD 452 at p 459).  There is no difference between a torture claimant and a refugee when it comes to the right to stay in Hong Kong pending final determination of their respective torture claim or application to resettle in another country.  With respect, the distinction between a refugee and a torture claimant drawn by Mr Shek is immaterial when applying the principles laid down in Sandagdorj Altankhuyag and Norena Gutierrez Cristhian Andres.

18.  Hong Kong and its people are entitled to expect the appellant, as a mandated refugee, just as they are entitled to expect torture claimants, to be law-abiding whilst waiting to be processed or resettled in another country and if they commit serious offences that tarnish the reputation of Hong Kong as a safe and orderly city, it is an aggravating factor that the court can take into account in sentencing.  There is no logical foundation for distinguishing mandated refugees and torture claimants in sentencing them for serious offences as suggested by Mr Shek.

19.  We accept and appreciate that the appellant, just like other mandated refugees or torture claimants, does face serious difficulties being stranded in Hong Kong and is unable to function economically through gainful employment.  However, we cannot accept that such difficulties (which are common amongst both refugees and torture claimants) can be mitigating factors to justify a more lenient sentence, otherwise criminals in Hong Kong will be encouraged to engage refugees and/or torture claimants in connection with their illicit business.  The courts are duty-bound to guard against such a possibility.

20.  We do not accept Mr Shek’s submission that the appellant’s resettlement process is completely out of his hands.  The repeated offences committed by the appellant would certainly affect his chance of overseas resettlement and would partly explain why he is still being stranded in Hong Kong over 15 years after he had been granted refugee status.  The personal difficulties faced by the appellant, to a large extent, are self-induced.

21.  We are satisfied that the judge was entitled to treat the appellant’s immigration status as an aggravating factor and enhance the starting point on the burglary charge by three months.  The offence committed by the appellant is certainly a serious one that would affect the community at large and tarnish the reputation of Hong Kong as an orderly and safe city.

(b)   Totality

22.  When sentencing a defendant who had committed multiple offences, the courts must of course have regard to the totality principle to avoid an excessive total sentence.  The courts can, in the exercise of a discretion, order part of the sentences to run concurrently.

23.  The judge clearly had regard to the totality principle and the alleged offending paragraph referred to by Mr Shek simply indicated that the judge, having considered the question of totality, concluded that the 22 months’ imprisonment imposed on the appellant should run consecutively to the 10-month sentence in respect of the offence of obtaining property by deception and theft imposed on 29 December 2016.

24.  The judge should have articulated the reasons why he considered consecutive sentences suitable.  The record of proceeding seems to suggest that the judge obtained information about the 10 months’ imprisonment only from the CSD.  The judge did not call for the file on KCCC 4501/2016 and therefore could not have the details of the case when he sentenced the appellant.  With respect, that is not an ideal way of dealing with the matter.  The judge should have acquainted himself with the details of KCCC 4501/2016 before deciding whether the 10-month sentence imposed therein should run consecutively to the 22 months’ imprisonment.

25.  We have the benefit of the case file on KCCC 4501/2016.  We note that the two cases (KCCC 4501/2016 and the present case), though both involving dishonesty, were entirely separate and were committed on different occasions in August and September 2016 respectively.  If the two cases were to be dealt with at the same time, the court would be entitled to and should impose entirely consecutive sentences.  The judge, in our view, was entitled to order the sentences on the two cases to run consecutively.  There is no valid basis to suggest that the judge was wrong in the exercise of his discretion.

26.  In any event, we are satisfied that the total sentence of 32 months’ imprisonment imposed on the appellant for the offences of “burglary” and “obtaining property by deception and theft”, in the entire circumstances, including the appellant’s previous convictions, is not manifestly excessive.  

Conclusion

27.  For the above reasons, the appeal against sentence is dismissed.