HKSAR v. CHEEMA ASGHAR SAJJAD

HCMA 85/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 85 OF 2000

(ON APPEAL FROM SPCC 8414/1999)

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J U D G M E N T

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1. On 23 December 1999, this Appellant was convicted on a plea of guilty on a charge contrary to section 43(1)(a) of the Immigration Ordinance, Cap. 115 that he being a person in respect of whom a deportation order was in force, was in Hong Kong in contravention of the order.

2. On August 1993, this Appellant had been convicted of two charges of Possession of an Identity Card of another person, and one charge of Breach of Condition of Stay. He was sentenced to 13 months imprisonment on each charge for the first two offences and 7 weeks imprisonment in respect of the breach of condition of stay. All offences were ordered to run concurrently.

3. On 30 April 1994, a Deportation Order for life was served on him and he was repatriated to Pakistan the country of which he is a national. On 7 December 1999, the Appellant came to Hong Kong using a Pakistan Passport in the name of Cheema Asghar Sajjad. Since his name was different from that stated in the deportation order, by error, he was allowed to enter Hong Kong. On 21 December 1999, he approached the Immigration Department to apply to extend his stay, but was arrested when a record check revealed that he was subject to the deportation order.

4. The Magistrate imposed a sentence of 12 months' imprisonment and Appellant says the sentence was too severe. He urged on me that he is an only son, that his father is ailing and has diabetes. He said he didn't come to Hong Kong to work but was here to visit a cousin. I note that all those matters were submitted to the Magistrate at the hearing. The Magistrate in considering sentence, considered the proper sentence as 12 months' imprisonment after plea. He looked at the case of R. v Corazon S Duazo, Criminal Appeal No. 1124/96 where Sears J treated the standard sentence for breach of deportation order as being 12 months imprisonment upon a guilty plea. He also considered the case of HKSAR v Nguyen Thi Thoa, Magistracy Appeal No. 110/99, where again a 12 month sentence imprisonment was upheld for a guilty plea.

5. The Magistrate looked further at the case of HKSAR v Sanchez Cula Renato, Magistracy Appeal No. 576/99 where a similar sentence of 12 months was imposed. Rather unsurprisingly, based on those authorities, the Magistrate considered for this particular offence, a 12 months' imprisonment was the appropriate sentence. He noted that there was no evidence the Appellant had come to Hong Kong to get a job, or for any other economic benefit, but he did not consider that a ground for reducing the sentence, merely an indication that this was not an aggravated offence.

6. Having looked at all the matters in this case and having heard the Appellant, I consider that the Magistrate's sentence is correct and dismiss the appeal against sentence.