HKSAR v. ALLAH HADAYAT

HCMA 1325/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1325 OF 2001

(ON APPEAL FROM KTCC 5505 OF 2001)

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J U D G M E N T

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1. This is an appeal against sentence only.

2. The appellant pleaded guilty to 3 offences: The first was an offence of breach of condition of stay, by way of the appellant overstaying the period he was permitted to be in Hong Kong, contrary to s.41 of the Immigration Ordinance, Cap. 115. In respect of that offence the appellant was sentenced to 1 month's imprisonment. The second offence was of obtaining a pecuniary advantage by deception contrary to s. 18(1) of the Theft Ordinance, Cap. 210. In respect of that offence the appellant was sentenced to 8 months' imprisonment. The third offence was of breaching a deportation order contrary to s. 43(1)(a) of the Immigration Ordinance, for that offence the appellant was sentenced to 9 months' imprisonment.

3. All sentences were ordered to be served consecutively. That is a totality of 18 months' imprisonment.

4. The facts of the offences were that the appellant was allowed into Hong Kong under his name of Allah Hadayat on 21 October 2000 and permitted to stay only until 4 November 2000. He overstayed in Hong Kong however, and was arrested on 2 August 2001. Those facts form the basis of the first charged offence. During that period of time, he obtained a false Hong Kong Identity Card in the name of Mohammad Ashraf and obtained employment on a construction site as a result of the production of that card and another false document. Those facts form the basis of the second charged offence .

5. Following his arrest on 2 August 2001 it was discovered the appellant had earlier unlawfully remained in Hong Kong under the name of Ghulam Ali and had been made the subject of a lifelong deportation order in 1997. Those facts form the basis of the third charged offence. During the period of his previous unlawful stay in Hong Kong, the appellant committed a number of serious criminal offences, including offences of robbery and blackmail.

6. In short, the appellant has seriously abused the laws of Hong Kong relating to immigration and while he was in Hong Kong has further abused its laws relating to criminal offences. He now appeals against the magistrate's sentence purely on an humanitarian basis. He does not say the sentence is too severe, but that he has a mother who is ill in Pakistan and seeks early release for that reason.

7. As the magistrate himself said in his reasons for sentence, the sentences and the totality of sentence imposed by him on the appellant are lenient. Indeed it could be said that the single offence committed by the appellant of breach of a deportation order, that is the third charged offence, would by itself warrant a sentence of 18 months' imprisonment.

8. So far as the humanitarian basis of the appeal is concerned, the facts forming the basis of the appeal in that regard are that the appellant's mother is apparently suffering from a significant heart-related illness in Pakistan. I have been shown documents by the appellant today which suggest she is not in hospital, she is with her family, but that she is advised not to undergo any form of strenuous activity or be subjected to any form of shock.

9. That is essentially the beginning and end of the appellant's request for humanitarian early release. I cannot see that those facts in any way, shape or form could amount to such exceptional circumstances as to warrant any humanitarian consideration of the appellant's case. The appeal is dismissed.