HKSAR v. SYED, IMTIAZ-UDDIN

HCMA34/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 34 OF 2007

(ON APPEAL FROM TMCC 3257 OF 2006)

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J U D G M E N T

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1.  This case is listed as an appeal against sentence but, in truth, it is an appeal against conviction, as the substance of the appeal is a claim by the Appellant that he is a mere overstayer and not someone who had landed unlawfully in Hong Kong and then remained, for it was for that latter conduct that he received a sentence of 15 months’ imprisonment.  He made the same claim in front of the Magistrate and there was a trial about whether or not he was an illegal immigrant.  The evidence of the prosecution was agreed and, in short, it disclosed there was no record of him having landed lawfully.

2.  There was another charge of misleading a police officer.  The Appellant pleaded guilty to that and received a concurrent sentence of 1 month.  I only mention it because its significance is that when first asked who he was, he misled that officer by telling a lie about his name and about whether or not he was entitled to a Hong Kong Identity Card.

3.  The Appellant gave evidence at his trial.  He said that he came through the Immigration control at the airport with an Indian Passport in the name of Syed, Imtiaz-Uddin Ahmed.  He said that he had lost his passport once he was in Hong Kong and that he had lost it sometime before he was intercepted by the police officer, whom he misled.  However, he conceded that knowing that he had lost his passport he did nothing to contact any government department or his Consulate or anything like that.  The Magistrate convicted him.

4. There was then a review.  At this review the Appellant produced a photocopy of a passport in the name of Syed, Imtaz-Uddin Ahmed but he quite clearly told the Magistrate that he had not used this passport to gain entry on 13 February 2000.  He made that explanation of not having used what was apparently, he claimed, his passport because it did not bear an Immigration chop showing his entry into Hong Kong.  The Magistrate judged that he was telling a pack of lies and was not minded to review his conviction or sentence.

5. Today, the Appellant produces the same photocopy of that passport to me, pointing out that the evidence at trial concerning the records dealt with a man whose spelling of his Imtiaz had an “i” in it and that this did not.  Therefore, it may be that another check would reveal he had landed, as he claimed. 

6. However, in complete contradiction to what he said to the Magistrate on the review, he now said that this was a copy of the passport he had used to enter Hong Kong lawfully.  For obvious reasons his credibility was at rock bottom.  Lest telling lies to bolster what he thought to be a weak case may have explained it all, we adjourned for a short time for the Immigration Department to carry out a check in the name with the spelling without the “i” and also a check for the relevant time using the passport number. 

7. The result was that there was no visitor with the surname Syed who arrived in Hong Kong on 13 February 2000 at any Immigration control point and no one with the name Syed, Imtaz-Uddin Ahmed arrived in Hong Kong on the strength of the Indian Passport with that specific number on the date in question.  Accordingly, I refused his application to adjourn the case in order to find out that information because we had found it out for him.

8. As regards the general merits of the appeal, the Appellant merely reasserted that he had used the passport of which we have the copy in court to arrive on the day in question.  He did then start to say that there may be some problem about the date because he had subsequently left Hong Kong and gone to Shanghai and come back here again.  He asked for a further adjournment.  I was not prepared to grant it because, in my judgment, the picture was clear.  This was a man willing to say anything on any occasion to suit himself in order to avoid the 15 months’ sentence which was, of course, the entirely appropriate sentence for unlawfully landing and remaining.

9. His appeals are dismissed.