HKSAR v. Muhammad Tariq Tahir

HCMA 402/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 402 OF 2015

(ON APPEAL FROM STCC 1744 OF 2015)

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JUDGMENT
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1.The appellant appeals against his sentences of 18 months’ imprisonment imposed in respect of two offences. The sentences of 18 months were to run concurrent to each other.

2.The appellant pleaded guilty to the first charge of using a forged identity card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap 177, and the second charge of taking employment while being a person in respect of whom a removal order is enforced, contrary to sections 38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap 115.

3.The appellant admitted to have worked on 8 June 2015 at a garage in Hung Hom.  He also admitted that he had used a forged Hong Kong Permanent Identity card to seek employment at the garage. 

4.In the magistrate’s[1] reasons for sentence, he referred to the case of HKSAR v Li Chang Li, MA 935/2004, and HKSAR v Usman Butt & Another [2010] 5 HKLRD 452.  He also noted that the appellant had three previous convictions. On 27 April 2011, the appellant had two similar convictions for these two offences for which he was sentenced to 20 months’ imprisonment.  The magistrate imposed a sentence of 18 months’ imprisonment in reliance on the cases referred to.

5.In the Admitted Facts, it stated that the appellant had spent 150 days in the custody of the Immigration Department (Immigration) which is commonly referred to as ‘administrative detention’ and that administrative detention had been for a period in March 2012 and in May 2013. 

6.After legal proceedings, the appellant was handed over to the Immigration on 6 March 2012, he was released on recognisance on 20 May 2012.  For that period he had therefore been detained for 76 days.  A year later, in May 2013, the defendant was arrested by the police again for failing to appear on his recognisance and was handed over to the Immigration and was detained from 10 May 2013 to 22 July 2013, for a further 74 days.  He was then arrested for this offence on 8 June 2015.  Therefore, prior to this offence, he had been in administrative detention for a total of 150 days.

7.It was subsequent to the above periods of detention that the appellant committed these two present offences. 

8.There was a removal order against the defendant.

The Grounds of Appeal

9.In his homemade grounds of appeal, the appellant seeks a reduction of the 150 days of administrative detention from the terms of imprisonment imposed.  He is not appealing against the sentences itself. 

10.The issue on this appeal is whether the magistrate acted within his discretion in declining to deduct from the sentence the time spent by the appellant in administrative detention.

Discussion

11.In respect of the 150 days of administrative detention prior to the present offence, the appellant would not be entitled to any statutory reduction for that period as far as section 67A(1)(a) of the Criminal Procedure Ordinance, Cap  221 is concerned.  It appears from the wording of section 67A that the time spent in detention, if it is to be discounted, has to relate to the offence for which the appellant was sentenced. 

12.The period in administrative detention is clearly not in relation to offences.  This offence was in fact committed some two years after his period of administrative detention.  Thus the administrative detention and the present offence are entirely unrelated.  The magistrate’s exercise of his discretion in respect of the appellant’s sentence should only be upset if it is shown that he was plainly wrong or that he had plainly failed to take into account matters which he should have had in mind when exercising his discretion.  The magistrate said in his reasons at paragraph 6:

“The periods of administrative detention have nothing to do with the present offences and this court is not obliged to reflect them in the sentence, nor am I prepared to exercise my discretion to so reflect.”

13.The magistrate acted entirely within his discretion in declining to deduct from the sentence the time spent by the appellant in administrative detention prior to the present offences.  The magistrate was not plainly wrong.  The appellant’s time in administrative detention had no connection with the present offence.

14.The appellant’s appeal against sentence is dismissed.

Ms Noelle A Chit, SPP (Ag) of the Department of Justice,for the respondent

The appellant appeared in person