HKSAR v. MOHAMED NALURDEEN MOHAMED RIYAZ

HCMA 321/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 321 OF 2003

(ON APPEAL FROM WSCC 202 OF 2003)

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J U D G M E N T

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1. This is an appeal by the Appellant out of time against a sentence of 16 months' imprisonment imposed upon him by Mr T S Jenkins sitting at Western Magistrate's Court on 6 March 2003 upon his plea of guilty to a count of Breach of a Deportation order made on 17 October 2000, contrary to section 43(1)(a) of the Immigration Ordinance Cap. 115.

2. Originally the Appellant did not appeal against sentence. On 21 March 2003, he unsuccessfully attempted to persuade Mr Jenkins to review the sentence of 16 months' imprisonment. Subsequent to that, on 2 April 2003, he lodged an appeal against his conviction.

3. The appeal against conviction came before this Court on 12 June 2003. On that occasion, the Appellant accepted that he had been in Hong Kong in breach of the deportation order in question. There was therefore no substance in his appeal against conviction, particularly as he had pleaded guilty at a time he was legally represented.

4. He did however urge matters upon me which he said justified a reduced sentence.

5. I was not completely clear as to why he had not filed an appeal against sentence. Taking a view favourable to the Appellant, it appeared to me that it might have been because he was under a misapprehension that because he had asked for a review of sentence, it was not appropriate to lodge an appeal against sentence.

6. Accordingly it seemed to be just to give him leave to appeal against sentence out of time.

7. The Court has now heard the Appellant's submissions and read the Reasons for Sentence of the learned Magistrate.

8. The matters put before me today by the Appellant have essentially been based on the hardship his imprisonment has brought upon his wife and children in Sri Lanka. He has told me that his own family have rejected him for marrying out of his religion. His first child suffers from a hole in the heart. His wife has just given birth to a daughter. She is living in reduced circumstances, surviving by making and selling lunch packets.

9. In his Reasons for Sentence, it is clear that the learned Magistrate in deciding upon the appropriate starting point was influenced by the analysis of Beeson J of the gravity of the offence under section 43(1)(a) of the Immigration Ordinance in the case of HKSAR v. Nguyen Chi Trung alias Dong Van Thanh HCMA 1095/2001. She, rightly in my view, took the view that an offence under section 43(1)(a) (Breach of a Deportation order) is more serious than an offence under section 38(1)(b) of the Immigration Ordinance. She took the view, with which I also agree, that a proper sentence after plea for an offence of this type, on a first offender is 18 months' imprisonment.

10. This, as the learned Magistrate concluded in his Reasons for Sentence, meant a starting point of 27 months' imprisonment before plea. The learned Magistrate took into account the particular mitigating circumstances of the Appellant in adopting a reduced starting point of 20 months' imprisonment in this case. He then discounted that starting point by 1/3 to reflect the Appellant's plea of guilty.

11. In my view the learned Magistrate's approach was perfectly proper. The Appellant has no cause for complaint about the sentence passed.

12. He is an educated man and a businessman. He was deported from Hong Kong on 7 November 2000, after serving concurrent terms of 6 months' imprisonment for possession of a forged Hong Kong Identity Card and breach of his conditions of stay. The order was served upon him on the day of his deportation. Just over 2 years later, he deliberately flouted that order by returning to Hong Kong for business purposes.

13. At the time he entered into Hong Kong on this occasion, he would have been aware of the hardship that would result to his wife and children if he was apprehended by the authorities here. He cannot now therefore complain about the consequences of his conviction.

14. I dismiss the Appellant's appeal against sentence.