HKSAR v. ISLAM, MD RAFIQUL

HCMA 416/2022

[2023] HKCFI 1547

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 416 OF 2022

(On appeal from STCC 2248/2022)

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J U D G M E N T

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1.  The appellant was convicted of an offence of taking employment while being a person in respect of whom a removal order is in force, contrary to section 38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap 115, Laws of Hong Kong. This appellant was the 2^nd defendant of three and pleaded guilty at the earliest opportunity. He was sentenced to 16 months’ imprisonment.

2.  The appellant now appeals against his sentence. He was represented by the duty lawyer scheme in the court below but unrepresented in this appeal.

The Facts

3.  This appellant admitted working in an unnamed molten iron yard in the New Territories at around 6 am on 14 September 2022. He was observed by police officers using an iron stick to stir the contents of a smelting furnace. When he was approached, he tried to run away but was subdued very quickly. He admitted taking employment as an odd-job worker whilst being a person in respect of whom a removal order is in force.

4.  The appellant entered Hong Kong illegally nearly 10 years ago. A removal order was issued against him on 3 December 2019, and served on him on 1 April 2020. That removal order remained in force on the material day.

The Appellant’s Background

5.  Mitigation put forward by the duty lawyer emphasised his plea at the earliest opportunity and the fact he committed this offence due to financial difficulty. He is 56 years old and has one previous similar criminal record.

6.  In 2018, he was arrested for taking employment whilst being a person who remains in Hong Kong without the authority of the Director of Immigration having landed in Hong Kong unlawfully. He was sentenced to 22 months and 2 weeks’ imprisonment in January 2019. The appellant confirms in this appeal hearing that he pleaded not guilty to that charge and was convicted after trial.

The Magistrate’s Reasons for Sentence

7.  In sentencing the appellant, the magistrate relied upon HKSAR v Usman Butt and Another [2010] 5 HKLRD 452, in which the Court of Appeal stated an appropriate sentence for such an offence upon a plea of guilty would be 15 months’ imprisonment for a first‑time offender.

8.  For this appellant, the magistrate took into account he had one previous similar conviction in 2019 and was no longer a first-time offender. He adopted a slightly higher starting point of 24 months having taken into account the cases of HKSAR v Eftakhar Beg, HCMA 262/2015 and HKSAR v Sohail, Adil and Zadha, Hunain Latif, HCMA 505/2019.

9.  There were no other mitigating factors which would warrant any reduction from that starting point. That starting point was reduced to 16 months’ imprisonment to reflect his guilty plea and the appropriate discount to be applied. The issue of taking administrative detention into account was not raised during mitigation.

Grounds of Appeal

10.  The appellant has put forward the general ground that his sentence was too severe and that he had been in immigration administrative detention for 3 months, therefore this sentence was too long. During the appeal hearing, he also complained about the starting point of 24 months. He put forward the ground “everyone else” was sentenced to 15 months’ imprisonment, which was not fair. His first ground remains that the court should reduce his ultimate sentence to take into account administrative detention in the past.

11.  The appellant accepts that he was detained on two separate occasions in 2014 for 37 days and 2020 for 51 days by the Immigration Department in CIC for wholly different reasons, reasons unrelated to this offence to which he pleaded guilty.

Conclusion

12.  The magistrate correctly adopted the appropriate tariff for this offence and was right to take into account the appellant had a previous similar conviction. I see no fault in his sentencing and the sentence was entirely proper.

13.  The period of administrative detention was within the purview of the Immigration Department and on both occasions that period in detention had no connection and was unrelated to the present criminal offence. I see no reason to exercise my discretion to reduce the sentence for time spent in administrative detention years ago.

14.  There are no merits in either grounds of appeal advanced today, therefore the appeal against sentence is accordingly dismissed.