HKSAR v. MOHAMMED, EJAJ AHMED

HCMA 415/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 415 OF 2009

(ON APPEAL FROM STCC 1966/2009)

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BETWEEN

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R E A S O N S   F O R   J U D G M E N T

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1.   On 10 July 2009, I allowed an appeal against sentence imposed on the Appellant in respect of two charges of making a false representation to an Immigration Assistant contrary to Section 42(1)(a) of the Immigration Ordinance, Chapter 115, Laws of Hong Kong to which the Appellant pleaded guilty on 6 April 2009.

2.   In respect of these two charges, the learned Principal Magistrate took as his starting point a term of 18 months’ imprisonment which he reduced to 12 months to reflect the Appellant’s plea. Due to the question of totality, he ordered 4 months of the 12 months’ sentence on Charge 2 to run consecutive to Charge 1, thereby imposing a total prison term of 16 months.

3.   Having heard arguments from the Appellant in person and representations from the Department of Justice, I allowed the appeal to the extent of imposing a sentence of 8 months’ imprisonment on each charge, thereby reflecting a starting point of 12 months, and ordered 2 months of the sentence on Charge 2 to run consecutive to the sentence on Charge 1, coming to an overall sentence of 10 months’ imprisonment. At the time I indicated that I would hand down written reasons for my so ruling. I do so now.

4.   In his homemade grounds of appeal, the Appellant effectively complains that a period of some 112 days that he spent on remand in relation to a case immediately preceding the present case ought to havebeen taken into account in the computation of his overall sentence.

5.   The matter arises this way, and I am thankful to Mr Daryanani, Senior Public Prosecutor, for his helpful presentation of the facts. The Appellant was originally charged and brought to court on 8 December 2008 under KCCC 7034/2008 for offences of misleading a member of the immigration service by giving false information and breach of condition of stay, contrary to Section 41, Cap. 115. The prosecution succeeded in obtaining numerous adjournments amounting to nearly 4 months in order to obtain legal advice on the misleading charge and it was not until 25 March 2009 that the misleading charge was withdrawn and the Appellant was sentenced to 7 days’ imprisonment on the charge of overstaying. By this time, the Appellant had indeed been in custody some 112 days if one includes the period between arrest, 3 December 2008 and being taken to court on 8 December 2008.

6.   As the Appellant was deemed to have already served the period of 7 days’ imprisonment, he was transferred to Castle Peak Bay Immigration Centre for repatriation. It was then that the Immigration authorities checked their records and discovered that the Appellant had previously assumed a different identity in Hong Kong. He was subsequently charged with the present two offences some 12 days later on 6 April 2009.

7.   The summary of facts relating to KCCC 7034/2008 which were supplied to me make it abundantly clear that at the time the case came to court on 8 December 2008, the authorities had sufficient information that with proper investigation would inevitably have led to the disclosure of the present two offences. Even if this is not correct, they most certainly had sufficient time in which to gather the intelligence bearing in mind the lengthy adjournment granted to them.

8.   In the event as the two cases have been dealt with separately, only 12 days apart, I am satisfied this Appellanthas suffered prejudice in that the 112 days he spent in custody waiting to be dealt with for the overstaying charge have not been taken into account in the sentence on the present two charges.

9.   A period of 112 days reflects a starting point of approximately 6 months’ imprisonment. I therefore decided to reduce the overall sentence imposed on the Appellant to reflect this.