HKSAR v. MOHAMED NALURDEEN MOHAMED RIYAZ

HCMA 321/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 321 OF 2003

(ON APPEAL FROM WSCC 202/2003)

____________

____________

_______________

J U D G M E N T

_______________

1. This is an appeal by the Appellant against his conviction. He was convicted on 6 March 2003 by Mr Jenkins sitting at Western Magistrate's Court of the offence of breach of a Deportation Order made on 17 October 2000, contrary to s. 43(1)(a) of the Immigration Ordinance, Cap. 115.

2. The Particulars of offence alleged that on 4 February 2003 at Flat B, 3/F, 20 Luen Yan Street, Tsuen Wan, being a person in respect of whom a deportation order dated 17 October 2000 was in force he was in contravention of that order.

3. The Appellant's conviction by Mr Jenkins followed a plea of guilty to the charge against him. At that time he was represented by a duty lawyer. On 21 March 2003, he unsuccessfully attempted to persuade Mr Jenkins to review his sentence. Subsequent to that, on 2 April 2003, he lodged an appeal against the conviction.

4. The admitted facts reveal that the Defendant had been arrested in Hong Kong on 30 January 2003 for an unrelated matter. Prior to being released on police bail, his fingerprints were taken and these revealed that he was the subject of a deportation order issued on 17 October 2000. The deportation order had been served on him on 7 November 2000 prior to his deportation that evening from Hong Kong to Colombo. An Immigration Assistant went to the Defendant's place of abode on 4 February 2003 and arrested him for breach of the deportation order.

5. The learned Magistrate found that the Defendant's plea of guilty and his admission of the facts was voluntary and unequivocal. The admitted facts proved the charge and the learned Magistrate accordingly convicted the Defendant as charged.

6. In his grounds of appeal, the Appellant said that he was not guilty of the offence to which he pleaded guilty.

7. However, when he appeared before me this morning, he accepted that he was in Hong Kong in breach of the deportation order in question. What he has urged before me today are matters which relate to sentence I am not completely clear as to why he did not file an appeal against sentence. It appears to me that it may be that he was under a misapprehension that because he had asked for a review of sentence, it was not appropriate to lodge an appeal.

8. In the circumstances, it appears to me to be just to give him leave to appeal against sentence out of time. I make an order therefore that he have leave to appeal against sentence out of time. I order therefore the matter to be remitted to the Magistrate for him to prepare a statement of findings in so far as sentence is concerned.

9. There is no substance in his grounds of appeal against conviction. He was legally represented. His plea was unequivocal. I dismiss his appeal against the conviction.