HKSAR v. SHAMSUL ISLAM

HCMA153/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 153 OF 2012

(ON APPEAL FROM STCC NO. 2342 OF 2011)

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REASONS FOR JUDGMENT

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1.  On 26 May 2011 the appellant pleaded guilty to a charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully contrary to s. 38(1)(b) of the Immigration Ordinance Cap. 115. He was sentenced to 15 months’ imprisonment (the Immigration offence). That sentence was ordered to be served consecutive to sentences of 14 months’ imprisonment which had been imposed on 31 March 2011.

2.  On 9 February 2012, the Hon Mr Justice D. Pang granted leave to the appellant to appeal against sentence out of time in respect of the Immigration offence.

3.  On 3 May 2012 I allowed his appeal against sentence and reduced the term of imprisonment from 15 months to 13 months.  I indicated that I would hand down my reasons in due course.  These are my reasons.

The Facts

4.  On 24 May 2008 the appellant sneaked into Hong Kong by boat from the Mainland.  On 29 May 2008, he was arrested by the police for illegally remaining in Hong Kong.  He was released on a recognizance by the Immigration Department on 21 June 2008 after having been detained by the Immigration Department for 23 days (the 1^st period of administrative detention). On 12 November 2008, he was arrested for another offence, for which he was eventually convicted and sentenced to 4 months’ imprisonment.  A removal order was then made against him and on 12 March 2009 after another period of administrative detention of 34 days, he was again released on recognizance (the 2^nd period of administrative detention).  On 21 March 2011, for an offence of trafficking in dangerous drugs and an offence of theft, he was sentenced to a total term of 14 months’ imprisonment.

5.  Thus it was that the total number of days that he was detained in administrative detention was 57 days.

6.  The appellant wishes that these be deducted from the sentences he is now serving as he has been advised and the respondent has confirmed, after considering section 67A(1A) of the Criminal Procedure Ordinance Cap. 221, that the time spent in administrative detention by the appellant does not count for the purpose of calculating his sentence and release date for the sentences he is now serving.

7.  In the lower court which dealt with the Immigration offence, Counsel then appearing for the appellant told the magistrate that it was the appellant’s instructions that the appellant did not want the court to take into account the period he had spent in administrative detention.  The magistrate acceded to that request and imposed a sentence of 15 months’ imprisonment and ordered that it be consecutive to the term of imprisonment imposed on 21 March 2011.

The Appeal

8.  In his home-made ground of appeal, the appellant said he now wants the 57-day administrative detention deducted from the 15 months’ imprisonment.

9.  The reason for his change of mind is unclear but I was satisfied that irrespective of his earlier instructions to his own Counsel he was nevertheless entitled to have those periods taken into account.

10.  On behalf of the respondent Mr Cheng did not oppose this course and the appeal was allowed to that extent only.