HKSAR v. MUHAMMAD, KAKEER

HCMA843/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.843 OF 2006

(ON APPEAL FROM ESCC 3189 OF 2006)

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J U D G M E N T

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Background

1. The appellant pleaded guilty to one charge of Breach of Deportation Order, contrary to section 43(1)(a) of the Immigration Ordinance, Cap.115 and one charge of Unlawful Remaining in Hong Kong, contrary to section 38(1)(b) of the same ordinance.  He was sentenced to six months’ imprisonment on the first charge and 18 months on the second charge consecutively, making a total of 24 months’ imprisonment.  He now appeals his sentence.

2. The appellant was deported from Hong Kong to Pakistan on 28 October 2005.  He was stopped by a police officer on 6 August 2006 and he claimed to have arrived in Hong Kong on 10 July 2006 on the strength of his passport and was permitted to stay for a month.  He produced no passport, only a UNHCR Asylum Seeker Certificate.

Grounds of appeal

3. The appellant advanced general grounds that his sentences were too severe.  He said he had met other inmates in prison and all of them received shorter sentences.  He hoped the court could treat him leniently.                   

Respondent’s reply

4. Counsel for the respondent relied on two cases, namely, HKSAR v. Cortez Emily Bisoy ]2002] 2 HKLRD 762 and HKSAR v. Mohamed Nalurdeen Mohamed Riyaz, HCMA321/2003, and submitted that 18 months’ imprisonment on a plea relating to an offence of breach of deportation order had been held to be appropriate.  It is thus submitted the six months’ imprisonment as imposed by the magistrate could only be described as lenient.

5. Counsel for the respondent also submitted that in view of the previous records of the appellant, an upward adjustment by three months from the normal tariff of 15 months’ imprisonment in respect of the unlawful remaining offence could not be faulted.                       

6. Lastly, counsel submitted that as both offences were distinct and separate, the magistrate was entirely correct in imposing consecutive terms of imprisonment.

My judgment

7. It is noted that whilst in the appellant’s written grounds he referred to sentences received by other inmates in prison, the facts of the cases, the charges that those inmates face and the background of those inmates are all unknown, such alleged information does not provide me with any reference value at all and are definitely not binding authorities.

8. The appellant has three previous court appearances with a total of five previous convictions, all of them are immigration offences.  His last sentence was in March 2005, for one charge of making false representation to an immigration officer and one charge of breach of condition of stay.  He received a total of 12 months’ imprisonment, and it was as a result of those offences that he was deported from Hong Kong. 

9. Whilst he had no previous record of unlawful remaining offences, his previous record shows that he was in flagrant disregard of the immigration laws in Hong Kong and could thus be appropriately described as “a persistent and contumacious offender against Hong Kong’s immigration laws”, per Lugar-Mawson J, HKSAR v. Vu Dinh Phong, HCMA1091/2000.  The magistrate was correct to adjust the sentence from the customary 15 months to 18 months in respect of the unlawful remaining charge.

10.  In HKSAR v. Nguyen Chi Trung, HCMA1095/2001, Beeson J reviewed the earlier authorities saying that the customary sentence for offence of breach of deportation order was 12 to 16 months’ imprisonment (HKSAR v. Do Thi Hue, HCMA873/2001 and HKSAR v. Vu Thi Wan Anh [2002] 2 HKLRD 284).  Declining to set down guidelines, Beeson J said :

“29. The crux of the offence of a breach of deportation order does not lie solely in an offender’s illegal presence in Hong Kong, as is true for unlawfully landing or remaining, or using a false identity card.  The gravamen of the offence is that a convicted person, who has no right to be in Hong Kong, and who has been prohibited from returning for a specified period, disobeys that prohibition and returns to Hong Kong.

30. A breach of a Deportation Order is a more serious offence than those under s.38(1)(b) of the Immigration Ordinance.  That is indicated by the legislative provision that enables such a breach to be dealt with on indictment, with a maximum sentence of 7 years.  The sentencing range of 12 – 16 months that prevails at present seems to have been reached incidentally by reference to, and association with, other offences under the Immigration Ordinance.  No Court of Appeal guidelines or tariffs exist and cases on sentence are persuasive rather than binding on this court.

31. Some principles do emerge.  A sentence for such breach should be deterrent as the offence is serious.  The charge should be recognised as aiming to prevent the unlawful return to, and presence in, Hong Kong of someone who has no right to enter, nor any right of abode, and to punish a convicted offender who defies an individualised prohibition.”

11. In that case, a sentence of 18 months’ imprisonment on a plea was upheld.

12. Similarly, McMahon DJ (as he then was) in HKSAR v. Cortez Emily Bisoy, supra, said this :

“The appropriate sentence for breach of a deportation order had increased substantially in recent years.  The offence was a serious one and was also to be treated more seriously than an offence of unlawfully remaining in Hong Kong.  A sentence of 18 months’ imprisonment after plea could not be criticised ….”

13. Those sentencing principles were followed by Longley DJ in HKSAR v. Mohamed Nalurdeen Mohamed Riyaz, supra and Fung DJ in HKSAR v. Pham Van Tuan, HCMA221/2004.

14. Gill DJ, in HKSAR v. Pham Ngoc Hue, HCMA874/2001 recognized that there had been inconsistent approaches by courts as to whether the sentences in respect of unlawful remaining charge should run concurrently to, or consecutively, or partially consecutively to the breach of deportation order charge.  He preferred the view taken by Jackson J in HKSAR v. Nguyen Van Hien, HCMA947/1998 that :

“….the offence of remaining in Hong Kong without authority is quite plainly a single offence but if the offender has come here in direct contravention of a deportation order then that is another offence and it is quite separate and distinct, and the learned Magistrate was perfectly entitled to view it as such and impose consecutive terms of imprisonment.”

15. I agree that partially consecutive sentences should be imposed.  Whilst the magistrate in the present case has adopted a different approach by imposing a sentence of only six months’ imprisonment on Charge 1 to run wholly consecutively to the 18 months in respect of Charge 2, the overall sentence of 24 months is not manifestly excessive nor wrong in principle.  What I would have done would be to impose 18 months in respect of both charges, and I would have ordered six months out of the second charge to run consecutively having taken into account totality.

16. The appeal is dismissed and I affirm the sentences.