HKSAR v. KHURSHID MUHAMMAD AND ANOTHER

HCMA 123/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 123 OF 2014

(ON APPEAL FROM STCC 3841 OF 2013)

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REASONS FOR JUDGMENT

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Introduction

1.  At the conclusion of the hearing on 8 April 2014, I dismissed the appeals of the two appellants and I announced that I would hand down the reasons for my judgment today.  This I now do.  

Background

2.  The 1^st and 2^nd Appellants (D1 and D2 at trial) each faced a single charge of taking up employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having unlawfully landed in Hong Kong, contrary to sections 38AA(1)(a) and 38AA(2) of the Immigration Ordinance, Cap 115.  They pleaded not guilty.  The case was heard before Magistrate Ms Merinda CHOW.  The magistrate convicted both of them.  She sentenced the 1^st Appellant to 21 months and 13 days’ imprisonment and the 2^nd Appellant to 22 months and 14 days’ imprisonment.

3.  The 1^st Appellant now appeals against conviction and the 2^nd Appellant against sentence. 

Admitted facts

4.  At the trial, the prosecution and defence admitted the following facts pursuant to Section 65C of the Criminal Procedure Ordinance, Cap 221:

(1) D1 (ie the 1^st Appellant) entered Hong Kong unlawfully on 21 November 2009.  He was arrested by the police on the same day and handed over to the Immigration Department on 23 November 2009.  He was released on Immigration recognizance on 22 December 2009. 

(2) D2 (ie the 2^nd Appellant) entered Hong Kong unlawfully around one week before 3 October 2013, when both D1 and D2 were arrested for the offences charged.

(3) Both D1 and D2 had a clear criminal record in Hong Kong. 

Prosecution case

5.  At sometime after 4 pm on 3 October 2013, Immigration officers found D1 and D2 inside  Room D, 14/F, Block 3, Elegance Garden, Tuen Mun (“the flat”).  An officer, PW1, who arrested D1, found D1 inside the flat, holding a piece of tile. D1 was wearing a short-sleeved top, a pair of light coloured trousers, a pair of black rubber gloves and a pair of slippers, and had a white towel wrapped around his head.  D1 told PW1 that he was doing “cleaning” work at the time.

6.  An Immigration Assistant, PW3, who arrested D2, saw D2 holding a screw-driver in his right hand and placed it between the gap of the skirting and the wall.

7.  When D1 was taken away from the flat, he used a key to lock the door. 

Defence case

8.  D1 and D2 gave evidence.  D1 also called a Mr Raja Azhar Mehmood (“Mr Mehmood”) to give evidence on his behalf. 

9.  D1 testified that he had intended to rent one of the two rooms in the flat for $2,000 starting in mid-October 2013. At the material time, he was inside the flat to do some cleaning.  Defence witness Mr Mehmood was the owner of the flat.  At the time of the incident, according to Mr. Mehmood, the flat was still under renovation but such works were close to the end.  He had signed a lease with a tenant (“the tenant”) on 14 September 2013 for a rent of $5,600 per month.  He told the court that the tenant could not afford to pay him the $5,600 rent, so he rented one of the rooms to D1 for $2,000.  His tenant would pay $3,600 for the other room.  However, at the beginning of his evidence, Mr Mehmood had said that D1 rented one room for $2,000, and D1’s brother and cousin would live in the other room rent free.  Moreover, the evidence was that, at the time of the arrest, D1 and Mr Mehmood had not signed any lease and D1 had not informed the International Social Service (“ISS”) that he was going to move out from his old flat to this new flat.  The ISS would pay rent and deposit direct to the owner.  It would also take time to do all the administrative works. 

10.  On the lease with the tenant, the tenancy period was for 2 years, and Mr Mehmood had paid stamp duties to confirm the validity of the lease on 17 September 2013.

The findings

11.  The magistrate accepted the evidence of PW1 and PW3, finding them to be honest and reliable. 

12.  On the other hand, the Magistrate found Mr Mehmood’s evidence contradictory, in that after he had signed the lease with the tenant and paid stamp duties for it in mid-September 2013, for a period of 2 years, at a rental of $5,600 per month, he could have rented a room to D1 at $2,000 a month, also allowing D1’s brother and cousin to live in the other room rent free, totally forgetting his obligation towards the tenant under the lease.  Not only that, he had been forgoing the $5,600 rent from the tenant for D1’s $2,000 prospective rent, which was incredible.  

13.  Mr Mehmood also told the magistrate that he had spent $25,000 in renovation.  He said that the renovation work had not yet finished.  D1 was not a friend but a person that he had met only twice or thrice.  He gave the key to D1 for cleaning purposes.  On this, the magistrate said:

“33. Mr. Mehmood said that the renovation work had not yet finished. They had not yet signed the lease. On the other hand, 1^st Appellant had not paid any deposit or informed the ISS about the so called new lease. It was totally unbelievable that Mr. Mehmood would give the key of the flat to 1^st Appellant in these circumstances.”

14.  The magistrate also examined what was depicted in the photographs of the flat taken by Immigration officers.  She noticed that the photographs showed that a window bay was still bare without any tiles, the skirting near the door had not yet been tiled, another skirting had just been tiled with cement sitting on top of the tiles and the cement was still wet as it was still dark in colour, indicating that the skirting had just been laid. New tiles were lying around the flat and there was still cement in the bag, indicating clearly that the cement was for the purpose of laying the tiles. Moreover, the kitchen was still messy as the works in it had not yet finished.

15.  The magistrate found that the flat was still under renovation and it was not ready for occupation.  She drew the only irresistible inference that D1 and D2 were working for renovation in the flat.  She concluded:

“46. Both 1^st Appellant and 2^nd Appellant knew they were inside the flat working for wages and they were not allowed to take up any employment as their status in Hong Kong was illegal immigrant.

47. To this end, I found the prosecution case proved beyond all reasonable doubt. Both 1^st Appellant and 2^nd Appellant were convicted as charged.”

D1’s appeal against conviction

16.  D1 has not raised any specific grounds of appeal, merely relying on the grounds as printed on Form 101, his notice of appeal.

17.  In his oral address at the hearing, D1 seemed to say that his witness, Mr Mehmood, did not come up to proof before the magistrate in that Mr Mehmood produced a contract (I understand that to mean the lease with the tenant) in court which had not been shown to D1 before.  This does not amount to anything that can question the correctness of the magistrate’s decision.  D1 has simply failed to raise anything of consequence in support of his appeal.

18.  I have perused the file closely, including the Statement of Findings made by the magistrate.  In my judgment, the magistrate not only analysed the testimonies of the witnesses before her carefully and reasonably, she also examined and considered the photographs taken at the scene.  She was fully entitled to make the findings as she did.  I consider that there is nothing in this case that indicates that D1’s conviction was unsafe or unsatisfactory.  His appeal against conviction is therefore dismissed. 

D2’s appeal against sentence

19.  D2 appeals against sentence.  The magistrate referred to HKSAR v Usman Butt [2010] HKLRD 452, which is the leading sentencing guideline case for illegal immigration and connected offences, for her relying on the sentencing guideline of 15 months after a plea of guilty.  Since D2 was convicted after trial, the 15 months imprisonment as starting point that is only applicable after conviction upon a guilty plea should be adjusted upwards so as to reflect the conviction after trial.  The normal and standard reduction for a guilty plea is one-third discount.  Working back, the sentence for a conviction after trial should be 22 and a half months.  This was the starting point adopted by the magistrate.

20.  D2 has not raised any specific grounds of appeal against sentence, except to rely on the printed grounds on Form 102, his notice of appeal against sentence. 

21.  D2 was a single farmer in Pakistan.  He entered Hong Kong illegally.  There is nothing in D2’s case to suggest any special circumstances or humanitarian grounds for the magistrate to depart from the sentencing guideline.

22.  At the hearing of this appeal, D2 told me that he entered Hong Kong one week before he was arrested on 3 October 2013. He has since been detained.  He did not know or understand why the magistrate allowed the 22 and a half months’ imprisonment sentence to be reduced by 1 day to become 22 months and 14 days for him.  Counsel for the respondent did not know either.

23.  The magistrate had not stated the reason for giving a one-day reduction in sentence to D2.  This might have been caused by her exercise of discretion or for some other unstated reason.  Nevertheless, since the reduction operates for the benefit of D2, I consider that it inappropriate for me to interfere with it, regardless of whether it was as a result of an exercise of discretion or otherwise.  I consider the sentence imposed on D2 by the magistrate was neither wrong in principle nor manifestly excessive.   

24.  D2’s appeal against sentence is also dismissed.