HKSAR v. ALI LIAQAT

HCMA 759/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 759 OF 2011

(ON APPEAL FROM STCC 3694/2011)

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BETWEEN

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JUDGMENT

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1.  The Appellant was charged with one charge of taking employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully, contrary to sections 38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap. 115. He appeared before a Magistrate in the Shatin Magistrates’ Court and pleaded not guilty. After trial, the Magistrate found him guilty and sentenced him to an imprisonment term of 22 months. He now appeals against the sentence imposed on him.

Facts of the case

2.  The Reasons for Sentence prepared by the Magistrate is brief.  It can be seen from the Admitted Facts (exhibit P1) that on 1 September 2006 the Appellant entered Hong Kong illegally from the mainland and then remained in Hong Kong without the authority of the Director of Immigration.  He was arrested on the same day by the Police. On 10 September 2009, he was released on recognizance by the Immigration Department. On 8 August 2011, the Appellant was arrested by a police officer for taking up unapproved employment while being remaining in Hong Kong unlawfully.  It is obvious from the conviction that the Magistrate found it proved that the Appellant was taking up such illegal employment at the material time.

The sentence

3.  In sentencing, the Magistrate noted that the Appellant is a person 43 years of age coming from Pakistan and with a clear record.  He is a Torture Claimant.

4.  The Magistrate followed the case of HKSAR v Usman Butt & Another HCMA 70 of 2010 in which the Court of Appeal held that an imprisonment term of 15 months is appropriate in a case of conviction upon guilty plea.  He gave the Appellant a discount of 1/2 month to take into account the 10 days the Appellant had spent in administrative detention.

5.  On this basis, he imposed upon the Appellant an imprisonment term of 22 months.

Grounds of Appeal

6.  At the appeal hearing, the Appellant appeared in person.  His ground of appeal is that the sentence is too severe.

7.  He also told me that he had suffered some serious injuries in his left leg and his other leg was also not feeling good.  He said he had stayed in a hospital for treatment for two weeks and is still suffering from pain.  He asked for reduction of sentence

Consideration

8.  In all the circumstances of the case, I do not see there are in existence any grounds which justify a departure from the sentencing consideration as set out in HKSAR v Usman Butt & Another. I agree entirely with the Magistrate that if the Appellant had pleaded guilty, a sentence of 15 months’ imprisonment would have been appropriate.

9.  It is obvious that the Magistrate had adopted a starting point of 22.5 months.  It is consistent with the abovesaid sentencing consideration.

10.  The Magistrate had fairly and appropriately made the deduction on the basis that the 10 days which the Appellant spent in administrative detention would not be taken into account when the Correctional Services Department is to determine the length of custody pursuant to the present sentence.

11.  In all the circumstances, the sentence imposed is neither wrong in principle nor manifestly excessive.

12.  What the Appellant told me at the appeal hearing do not provide sufficient grounds for me to interfere with the sentence. 

Conclusion

13.  The appeal against sentence is dismissed.  The original sentence of 22 months’ imprisonment stands.