HKSAR v. AJAZ, MUHAMMAD

HCMA 344/2024

[2025] HKCFI 1395

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 344 OF 2024

(ON APPEAL FROM STCC 2765 OF 2024)

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J U D G M E N T

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1.  The Appellant pleaded guilty before the Magistrate for one count of “taking employment while being a person in respect of whom a removal order is in force”, contrary to section 38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap 115. The Appellant was sentenced to 23 months’ imprisonment. The Appellant now appeals against the sentence.

Prosecution’s Case

2.  The Appellant was the holder of a recognizance form. At about 0848 hours on 16 July 2024, the Appellant was found assembling hawker stalls at the vicinity of hawker stall no. B51 at Nos. 48 to 50 Tung Choi Street. Investigation revealed that a removal order was issued against the Appellant, and the removal order against him remained in force on the offence date.

The Appellant’s Background

3.  The Appellant is 52 years old. He had 2 previous convictions. All of them were the same as the present offence. For those 2 convictions, he was sentenced to 15 months’ imprisonment in 2016 and 23 months’ imprisonment in 2018 respectively. Now, he intends to go back to Pakistan after serving his sentence.

Magistrate’s Reasons for Sentence

4.  After considering the Appellant’s previous records, the Magistrate imposed a sentence of 23 months upon guilty plea, considering that the Appellant had been sentenced to 23 months’ imprisonment already for his second conviction of the same offence, but he still committed the present offence, and the Appellant did not seem to have learned a lesson.

5.  The Appellant was a third-time offender. The Magistrate considered that the sentence should not be less than 23 months, which was imposed on the last occasion, in order to have sufficient deterrent effect.

6.  The Magistrate also considered the case of HKSAR v Hau Hoi Tung CACC 39/2002. In that case, the Appellant also committed the very same offence as the present one. The Court of Appeal held that a sentence of 18 months would have been justified for a plea of guilty to a second offence of this kind, and for a third offence, no legitimate complaint could have been made to a sentence of 21 months’ imprisonment upon guilty plea.

7.  However, the Court of Appeal in Hau Hoi Tung did not mention that 21 months’ imprisonment after plea was the highest sentence to be imposed on a third time offender.

8.  The Magistrate also acknowledged that the sentencing guideline for the present offence is the same as that of unlawful taking up employment under section 38AA of the Immigration Ordinance: see R v So Man King [1989] 1 HKLR 142 and also HKSAR v Usman Butt [2011] 1 HKC 12.

Grounds of Appeal

9.  Mr Chan, for the Appellant, put forward the following grounds of appeal, basically saying that the learned Magistrate was wrong in principle to adopt the 53.3% enhancement to the original starting point on the present facts.

10.  The Appellant relied on the case of HKSAR v Tang Wing Cheung CACC 146/2002. In that case, the Court of Appeal held that an enhancement of as much as 50% on account of the Appellant’s previous convictions was wrong in principle.

11.  And also in Hau Hoi Tung, the Court of Appeal held that an enhancement of 40% was appropriate for an Appellant who had 2 previous convictions for the same offence as in the present case. But in that case, the Court further took into account the Appellant committed the offence only 5 weeks after being released from custody.

12.  And the Appellant also relied on HKSAR v Lam Kwai Wa HCMA 1078/2002. The Court of First Instance held that an enhancement of 100% of the original starting point was inappropriate for an Appellant who had 11 previous similar convictions, namely, theft. The Court of First Instance held that an enhancement of 25% to the starting point was appropriate.

13.  Mr Chan, in his written submission, further stated the general principles concerning the enhancement relying on the case of HKSAR v Har Tsz Yui [2020] 1 HKLRD 307, the Court of Appeal stated that “it was open to the judge to enhance the sentence”, particularly in respect of serious offences. But for considering the enhancement of sentence, the Court should not lose sight that the original starting point of sentence must be proportionate to the actual offence and that the degree of enhancement must be reasonable. When imposing enhancement, the sentencing court must undertake a holistic exercise which depends on the facts of the case.

14.  In that case, the Court of Appeal observed that enhancement might be lesser for an offender with 1 or 2 previous convictions while a greater enhancement for an offender with 3 or 4 more convictions.

15.  The Court of Appeal in that case also observed that the present court should take into account the time period between the present offence and the previous similar offence.

16.  Mr Chan, also in his written submission, stating the full facts of Tang Wing Cheung, Hau Hoi Tung, and saying that in the present case, a final sentence of more than 21 months’ imprisonment would be inappropriate, taking into account that there are no further aggravating features in this case, and the Appellant’s conduct is not as serious as Hau Hoi Tung. The Appellant in the present case only had a gap of roughly 4 years between both offences.

17.  However, the court imposed a sentence beyond 21 months’ imprisonment. It may be starting to get very close to enhancement of 50%, which is wrong in principle for the facts of the present case.

18.  Mr Chan, also stating the facts of Lam Kwai Wa, saying that the Court of First Instance held that the enhancement of 100% inappropriate. Instead, Court adopted a 25% increase of the enhancement percentage.

19.  So, all in all, the Appellant submitted that this Court should impose a lighter sentence by taking a lower enhancement starting point from the original starting point.

Respondent’s Reply

20.  The Respondent submitted that for the present offence, that is “taking employment while being a person in respect of whom a removal order is in force”, the maximum sentence is 3 years’ imprisonment.

21.  The Court of Appeal had laid down the sentencing tariff. For a first offender, appropriate sentence is one of 15 months upon a plea of guilty; see HKSAR v Usman Butt. But the present Appellant was not a first-time offender. He had already committed 2 previous same offences. And the last one, he had been imposed a sentence of 23 months’ imprisonment in September 2018.

22.  So indeed, for the present case, the Appellant had been sentenced to 23 months’ imprisonment for his second conviction of the same offence already, but he still committed the present offence. So for a third-time offender, there was no good reason to impose a sentence less than his second conviction. And also in Hau Hoi Tung, the Court of Appeal stated that:

“ … for a third offence, there could have been no legitimate complaint to a sentence of twenty-one months’ imprisonment where a plea of guilty had been entered.”

But in that case, the Court of Appeal did not specifically mention that 21 months’ imprisonment after plea was the highest sentence to be imposed.

23.  The Respondent submitted that the sentence imposed on the Appellant previously could not have adequate deterrent effect on him.

24.  And in relation to the Appellant’s argument that the Magistrate was wrong in principle to adopt a 53.3% enhancement, the Respondent submitted that the cases relied on by the Appellant of Tang Wing Cheung and Lam Kwai Wa were related to offences of dishonesty, which the Respondent will say that making reference to percentage of enhancement in other types of cases was not helpful in the present case, particularly in Tang Wing Cheung that concerned the charge of burglary of domestic premises and in Lam Kwai Wa concerned the charge of theft, which were different from the present case.

25.  Therefore, the Respondent submitted that the sentence adopted by the Magistrate was not manifestly excessive or wrong in principle. So the appeal against the sentence should be dismissed.

Consideration

26.  In the Court of Final Appeal case HKSAR v Hui Lai Ki [2024] HKCFA 7, it is stated that the Magistracy Appeal is conducted by way of rehearing. On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies appellate intervention to reverse the decision of the Magistrate.

27.  For sentencing appeal, this court also has to consider the relevant facts, mitigation submitted and all the relevant authorities.

28.  As for sentence, the Magistrate had duly referred to So Man King and Usman Butt as stated above, where the starting point for the present offence shall be 15 months’ imprisonment upon guilty plea.

29.  The Magistrate further referred to Hau Hoi Tung where particularly stated that a sentence of 21 months’ imprisonment upon guilty plea for a third-time offender could receive no legitimate complaint.

30.  Now, the Appellant complained that 23 months’ imprisonment for his same third-time offence was excessive.

31.  However, first, as observed by the Magistrate, Hau Hoi Tung did not mention that 21 months’ imprisonment was the highest sentence. Clearly, each case must depend on its own facts and circumstances.

32.  Secondly, the Appellant had already been sentenced for 23 months’ imprisonment for his second same conviction. I do agree that there was no reason why the third-time offending would attract lesser sentence, especially it did appear that the past sentence served no sufficient deterrent effect on the Appellant. As in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, it warranted an enhancement of sentence in the circumstances.

33.  Thirdly, the case now relies on the Appellant saying Tang Wing Cheung and Lam Kwai Wa, only concern offences not comparable to the present case.

34.  To conclude, the sentence imposed by the Magistrate is neither excessive nor wrong in principle. The sentence shall stand, the appeal against sentence is dismissed accordingly.