HKSAR v. MUHAMMAD ALI

HCMA 774/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO HCMA 774 OF 2015

(ON APPEAL FROM STCC 3747 OF 2015)

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J U D G M E N T
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Background

1. The Appellant, a 29-year-old male asylum seeker from Pakistan, came before Shatin Magistracy on 19 November, 2016 and pleaded guilty to one count of “Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully”, contrary to section 38(1)(b) of the Immigration Ordinance, Cap 115. 

2. He was sentenced by the Principal Magistrate, Andrew MA, Esq., to 15 months’ imprisonment.  He now appeals against the sentence.

3. After hearing the Appellant in court and consideration of the submission by the respondent, I allowed the appeal and reduced the sentence by 59 days. I said I would hand down my reasons which I now do.

Brief Facts

4. The Appellant was intercepted and arrested by the police on 13 December 2012.  He admitted to have sneaked into Hong Kong from the Mainland 2 days before the arrest and since then he had been remaining in Hong Kong until the day of arrest.  He was detained by the Immigration Department and a Removal Order was issued against him on 30 January, 2013.  Whilst in custody, the appellant filed a torture claim and was subsequently released on in his own recognisance on 9 February, 2013 after being detained for 59 days. (“Administrative Detention”)

5. The Appellant was eventually charged with the present offence.  He pleaded guilty and was represented by the Duty Lawyer Service when the plea was taken on 19 November 2015.  The Appellant was sentenced on the same day. 

Previous convictions and mitigation

6. The Appellant had 2 previous convictions of “Possession of a dangerous drug” which were sentenced on 16 May 2014 (sentenced to 4 months’ imprisonment suspended for 18 months) and 26 May 2014 (fined HK$2,500 or 7 days’ imprisonment in default) respectively[1]. Both offences were committed whilst the Appellant was released on bail pending the determination of his torture claim.

7. According to the mitigation by the duty lawyer, the Appellant came to Hong Kong due to some political problems in Pakistan.  The issues having been resolved, in May 2015, he wrote to the Immigration Department to allow his voluntary departure[2]. 

Reasons for Sentence

8. The Principal Magistrate reminded himself of the guideline laid down in the case of R v So Man King [1989] 1 HKLR 142 in which the Court of Appeal determined that 15 months’ imprisonment should be imposed on an unlawful entrant who pleaded guilty.  The Appellant was accordingly sentenced to one of 15 months’ imprisonment. 

Ground of Appeal

9. In Form 102 dated 26 November 2015, the Appellant sought to appeal against the sentence on the sole ground that the sentence was too severe.

10. During the hearing, the Appellant was unrepresented.  He did not file any written Ground of Appeal.  He just supplemented his Ground of Appeal orally by saying that the 59 days that he had spent in custody before he was released was the “first imprisonment” and in effect, the Principal Magistrate had imposed a “second imprisonment” in respect of the same offence.  He also complained that the 15 months’ imprisonment was too severe and asked me to be merciful and reduce the sentence or even suspend the sentence.

The respondent’s submission

11. Mr Nicholas Wong, for the respondent, referred me to a number of authorities in an effort to assist the court in the disposition of this appeal. 

12. In the well-known authority of R v So Man King, The Court of Appeal considered a period of 15 months’ imprisonment should be used as the basic guideline in cases of remaining in Hong Kong unlawfully and the guideline already allowed for the almost inevitable plea of guilty. 

13. As to whether the Appellant’s sentence should be reduced by reason of administrative detention, the respondent submitted that apparently the Principal Magistrate was aware of the status of the period of administrative detention before passing the sentence although he did not mention this at all when he passed the sentence in court.  Mr Wong also properly acknowledged that according to the available information at hand, there was nothing to suggest that the period of administrative detention had been taken into account by any other magistrates when the Appellant were previously sentenced in respect of the other offences.

14. Mr Wong also referred me to the case of HKSAR v Eftakhar Beg HCMA 262/2015 (unreported 6 July, 2015)).  In this case, Zervos J upheld a magistrate’s decision not to reduce a defendant’s sentence by the period of administrative detention.  The conclusion of the case has succinctly summarized what should be the sentencing approach adopted by a magistrate if before passing a sentence, it is known that a defendant has previously been detained by the law enforcement authority such as the Immigration Department before he was brought before the court for sentence.

15. Zervos J concluded as follows (at para 40):-

“In future, magistrates when dealing with cases of this type should be appropriately informed of the correct status of any period administrative detention and whether, in particular, it has been previously taken into account by the courts for any previous sentence imposed on the defendant. The magistrate is then in a better position to address whether any period of administrative detention can or should be reduced from a custodial sentence imposed under section 67A(1A), and if not, whether under the court’s sentencing discretion, the period in custody which has not been previously taken into account in the reduction of a sentence, should nevertheless be reduced from the custodial sentence imposed in order to address any injustice or unfairness to the defendant.”

A correct interpretation of the application of S.67A

16. Section 67A of the Criminal Procedure Ordinance, (Cap 221) deals with the computation of sentences of imprisonment.  Section 67A(1) deals with “judicial detention” whereas section 67A(1A) deals with “administrative detention”.  It reads as follows:-

“(1) The length of any sentence of imprisonment imposed on a person by a court shall be treated as reduced by any period during which he was in custody by reason only of having been committed to custody by an order of a court made in connection with any proceedings relating to the sentence or the offence for which it was passed, or with any proceedings from which those proceedings arose, but where the person was, in respect of the offence for which the sentence of imprisonment was imposed, subject to an earlier order made under-

(a) section 3 of the Probation of Offenders Ordinance (Cap 298);

(b) section 36 of the Magistrates Ordinance (Cap 227); or

(c) section 109B of this Ordinance,

any such period of custody falling before the earlier order was made shall be disregarded for the purposes of this section.

(1A) The length of any sentence of imprisonment imposed on a person by a court shall also be treated as reduced by any period during which he was, immediately prior to his first appearance in court in connection with any proceeding relating to the offence for which the sentence of imprisonment was imposed, in custody-

(a) of the police, Customs and Excise Department of Independent Commission Against Corruption in connection with that offence; or

(b) under Part VII of the Immigration Ordinance (Cap 115) in connection with that offence.

…

(5) In this section “court” (法庭) includes the District Court and a magistrate.”

17. In HKSAR v Nguyen Duy Tien, HCMA 264/2015 (unreported 26 June, 2015) (a Chinese Judgment), Douglas Yau DHCJ, after reviewing section 67A and a number of authorities on administrative detention, pointed out that section 67A is a mandatory provision and has no room for the exercise of any discretion by the court.  Douglas Yau DHCJ observed (at paragraph 10) that the operative words in section 67A is “shall be treated as reduced by…” and not “shall be reduced by…” and hence the correct interpretation is that any period of administrative detention by the Immigration Department shall be further “treated as reduced” from the formal sentence already imposed by the court as part of the sentence already served by the defendant but the same shall not be reduced before the final sentence is imposed during the sentencing process.  Otherwise, the phrase “treated as reduced” in the section would be rendered meaningless.  In other words, section 67A is a section that deals only with the computation of sentences of imprisonment by the Correctional Services Department after the sentence was already imposed by the court on a particular prisoner.  In support of this observation, Douglas Yau DHCJ also cited HKSAR v Yuliani Rahmawati Galiman, HCMA 108/2015 (unreported) where Barnabas Fung J had also once said that in any event, the relevant period of detention would only affect the computation of the actual terms of imprisonment but not the sentence. 

18. In my judgment, the above interpretation is only logical and must be correct.  In fact, any period of administrative detention which should be treated as reduced by the operation of section 67A(1A) should not be reduced by the court before the sentence is imposed or else there might perhaps be double or repeated deduction by the Correctional Services Department when the sentence is subsequently computed which cannot be the legislative intention. 

19. Returning to our present case.  According to section 67A(1A)(b), it appears that when the Appellant was detained by the authority pursuant to Part VII of the Immigration Ordinance (Cap 115) following his arrest for “illegal remaining”, on the face of it, the sentence might well be treated as reduced by the period of his administrative detention.

20. However, that is not the end of the matter.  There are the dual requirements under this section to be satisfied before a sentence can be treated to be reduced by a period ofadministrative custody.  First, that the period in custody was in connection with the offence on which the defendant was sentenced, and secondly, that the period in custody was immediately prior to his first appearance in court for such offence.  In other words, there is a need to satisfy both nexus and proximity of the period in custody with the sentence to be imposed in relation to the offence that the Appellant is being charged with.

21. In the present case,  the Principle Magistrate only had this to say in his written Reasons for Sentence when he refused to allow deduction for the period of administrative detention:-

“The Appellant was kept in immigration custody for 59 days after he filed his claim. It had nothing to do with the present offence and this Court is not obliged to reflect it in the sentence…” (see para 4; p8 Appeal Bundle)

22. As to how and why the Principal Magistrate formed this view was unclear.  Apparently, based on the available information, the Principal Magistrate was not entirely correct when he said the period of custody had nothing to do with the present case.  On the contrary, the Appellant was detained after he was arrested for “illegal remaining” and he was sentenced by the court for exactly the same offence.  Hence, the nexus requirement is satisfied.

23. As to the proximity requirement, despite the fact that before the present case, there were already two intervening court appearances of the Appellant in May 2015 relating to other two other offences, those were “Possession of dangerous drugs” offences and thus have nothing to do with the present offence.  In other words, when the Appellant was finally brought before the Principal Magistrate for plea on 19 November 2015 relating to the present offence, one should not overlook the fact that it was still his first appearance in court in connection with the same “illegal remaining” offence. 

24. The only stumbling block which finally prevented the Appellant from getting his statutory reduction was that under section 67A (1A), the period of custody that can be reduced is said to be those period immediately prior to his first appearance.  As said, in this case, the Appellant first appeared in court in connection with this offence on 19 November, 2015 but this period of administrative detention was already more than a year ago.  Mr Wong for the respondent properly submitted that as such, this period of administrative detention could not be regarded as immediately prior to the Appellant’s first appearance in court and therefore the proximity requirement was not satisfied.  Mr Wong further argued that although it appeared that the Principal Magistrate was based on the wrong premises when he said the administrative detention had nothing to do with the present case, I am still entitled to look at the evidence afresh and uphold the sentence albeit upon a different reason.

25. As the proximity requirement cannot be satisfied, section 67A(1A) cannot assist the Appellant. The remaining issue of this appeal is whether the court can and should still exercise its discretion to reduce the sentence in order to be just and fair to the Appellant.

Judicial discretion

26. What happened in this case to the Appellant is despite that he has satisfied nearly all pre-conditions under the ordinance, since he has already been released by the Immigration Department following his filing of the torture claim and was no longer under administrative custody before he was to be sentenced, therefore his 59 days of detention could not be treated as reduced from the sentence. 

27. I was informed by the respondent that the decision to charge the Appellant by the Immigration Department in November 2015 with the present offence was prompted by the Appellant’s earlier decision to withdraw his torture claim about six months before he was charged.  Thus, whilst the lodging of the claim by the Appellant has set him free from administrative custody in the first place in February 2014, his subsequent withdrawal of the same has eventually caused him to be charged and of course sentenced in November 2015.  Unable to claim any deduction on account of his administrative custody, the Appellant’s grievances and feeling that he has in effect been “imprisoned twice” for the same offence is not difficult to understand at all.

28. By lodging the torture claim, the Appellant was no more than exercising his right to rectify his status and thereby justify his arrival and presence in Hong Kong. The Immigration Department also, as a matter of their usual policy, released the Appellant on his own recognisance immediately following the receipt of his application.  The Appellant voluntarily abandoned his claim after waiting his application to be processed for more than 15 months (February 2014 – May 2015) without any determination by the tribunal on the merits of his application.  However, by operation of section 67A(1A), the release of the Appellant has the effect of depriving him the entitlement to otherwise deduct this period of administrative detention from the sentence he subsequently received.  The Appellant would not know he would abandon his claim later when he first lodged the torture claim.  He probably even did not know he would be charged and receive a sentence of imprisonment at all when his status has changed from an asylum seeker to be an illegal immigrant following his decision to withdraw the application.  What is more, he would not have appreciated the niceties and subtleties of the statutory requirements and therefore the legal consequence of losing all his entitlement for reduction in sentence in future at the time when he was released from his previous custody back in February 2014. 

29. The situation however would be very different if the period of detention is by an order of a court.  There is no proximity requirement under section 67A(1).  Unlike the Appellant’s situation, the granting of bail by the court would not operate as a detriment to a defendant as far as his future entitlement of reduction for detention by the court is concerned.

30. I accept that there must be a reason for different requirement and therefore a disparity of treatment towards judicial detention on the one hand and administrative detention on the other hand in so far as computation of sentence is concerned. Section 67A(1A) deals with administrative detention by law enforcement authorities such as the police, the Customs and Excise Department, the Independent Commission Against Corruption and of course the Immigration Department.  In reality, except for the Immigration Department, in the case of the other departments, invariably an arrested person cannot be detained for investigation for more than 48 hours.  In those situations, even a defendant was later to lose his entitlement for reduction of administrative detention under section 67A(1A) by reason of the fact that  he was already admitted to bail before appearing in court, the relevant time loss must be relatively short and in any event not more than 48 hours.  Therefore seldom would also a magistrate, before passing a sentence, be called upon to exercise judicial discretion to reduce the sentence on account of administrative detention in respect of a non-immigration related case.

31. In the Appellant’s case, he was properly detained by the Immigration Department under Part VII of the Immigration Ordinance (Cap 115)for 59 days pending a Removal Order which is nearly two months.  There may well be a reason attributed to the Appellant himself for such a length of detention such as his not being co-operative and thereby making it more difficult for the authority to verify his identity but there is no such reference in the brief facts of this case.  Nor was the Principal Magistrate informed as to why the Appellant had been detained for so long. Such information, if any, is obviously relevant to the issue of whether to exercise the discretion or at all and also whether the defendant is entitled to a full or only partial reduction and therefore more information as to why a defendant was detained for such a length of time should always be supplied to the sentencing magistrate by the prosecutor in court.

32. In my judgment, it would be unjust to the Appellant if I were to shut my eyes to the practical consequences in terms of the time loss suffered by the Appellant because he was detained by the Immigration Department for not a short period.  That said, each case has its own facts, I am not saying that those detained much longer by the Immigration Department should automatically be entitled to a more favourable consideration by the court but the mere fact that a defendant who stands to lose not only a short period for deduction of sentence in terms of days but instead months should merit at the very least a more careful and detailed consideration by a magistrate whether to exercise judicial discretion to reduce the sentence in the interest of justice.

Conclusion

33. I can only assume, for the benefit of the Appellant, that the period of his administrative detention has not been pro-longed by any of his own fault. Based on the above reasons, in order to address the issue of fairness, justice demands that the Principal Magistrate should exercise his discretion and reduce the 59 days of previous detention by the Immigration Department from the sentence that should be imposed on the Appellant.  As said, the Principal Magistrate has correctly applied the guideline in So Man King and adopted a 15 month imprisonment for the charge and therefore the imprisonment term should be reduced by 59 days.  To that extent, the appeal is allowed accordingly.