HKSAR v. RAJA ALI ARSHAD

HCMA319/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.319 OF 2002

(ON APPEAL FROM TMCC 510 OF 2002)

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J U D G M E N T

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1. This is an appeal against sentence only. The appellant was convicted on his own plea of an offence of possession of an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap.177, in respect of which he was sentenced to 15 months' imprisonment; of an offence of breach of a condition of his stay in Hong Kong by overstaying by a period of two years, contrary to section 41 of the Immigration Ordinance, Cap.115, in respect of which he was sentenced to four months' imprisonment; and, finally, of an offence of breach of a deportation order, in respect of which he was sentenced to eight months' imprisonment, contrary to section 43(1)(a) of the Immigration Ordinance, Cap.115. The sentences in respect of the first two offences were ordered to run concurrently but consecutive to the sentence in respect of the third offence. That was a total of 23 months' imprisonment.

2. The appellant, in his appeal against sentence, does not say that the sentences imposed were wrong in principle or themselves manifestly excessive, but asks the court to take into account a humanitarian ground for a reduction in those sentences.

3. The humanitarian ground advanced by the appellant is that he believes that his children in Pakistan may not be properly looked after. That is because his wife has died, and the children are presently, he believes, looking after themselves.

4. But the appellant does have some family members in Pakistan and his wife's family are there as well. Whilst one must have sympathy with the appellant's assertion that his wife has died, that is not, in my view, a sufficient humanitarian reason for any further reduction in sentence. Any humanitarian reason advanced as the basis for an application for reduction of sentence must be exceptional.

5. Unfortunately, appellants, such as the present appellant from Pakistan, who have come to Hong Kong unlawfully, and who are sentenced to the terms of imprisonment appropriate to their offences, very often come back to this court to seek a further reduction in their sentence on the basis of some humanitarian reason. Very often, as in this case, there is nothing advanced in support of the proffered humanitarian basis for a reduction of sentence other than the appellant's own assertion. Such cases are difficult to deal with. No doubt conditions in Pakistan are not amendable to children and families being able to be left there with any reassurance as to their well-being. But in my view, family difficulties, even considerable family difficulties as may exist in this case, do not amount to the degree of exceptional hardship required before there can be a justifiable reduction of sentence on the basis of humanitarian reasons.

6. Accordingly, the appeal against sentence is dismissed.