HKSAR v. Villan Palpandi and Another

HCMA 569/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 569OF 2015

(ON APPEAL FROM STCC 2567 OF 2015)

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J U D G M E N T

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1.There were 5 Defendants in the charge sheet.[1] A1 was D2 in the charge sheet, while A2 was D4. Both of them pleaded guilty to the charge before Magistrate Ho Chun-yiu, and each was sentenced to 15 months imprisonment. Both A1 and A2 applied to review the sentence which was heard on the same date, that is 26 August 2015. Their review applications were refused. They now appeal against the sentence, with the main concern over the period of administrative detention which they wanted to be counted as part of their sentence. Both Appellants were represented by the Duty Lawyer at trial, and they were not represented in these appellate proceedings.

THE PROSECUTION CASE

2.The Magistrate in his reasons for sentence briefly stated the facts of the case as follows:[2]

“On 10 August 2015, during a joint operation by the Police, the Labour Department and the Immigration Department, D2, D4 and other persons were found to have taken up unapproved employment at an unnamed recycling depot. D2 was seen moving some electronic parts from one cage to another, while D4 was found to be using an electric screwdriver to disassemble printers. At the material time, removal orders were in force in respect of both D2 and D4, and both of them were prohibited from taking up any employment.”

GROUND OF APPEAL AGAINST SENTENCE

3.In court today, I asked the court interpreter to translate the Respondent’s submission for the sake of the Appellants.

4.A1 filed Form 102 dated 31 August 2015 and attached a letter in his own handwriting.  A1 said he has a family problem in India.  He could not send any remittance advice to his country and his 70-year-old mother cannot maintain her daily livelihood.[3] A1 reiterated his position in court saying that his parents were sick and he needed to look after them.

5.A2 filed Form 102 also dated 31 August 2015 and attached a 2-page letter written partly in English.  A2 also sent a letter written in Indian to the Department of Justice dated 29 December 2015, together with some medical documents in 4 pages.  The same was re-directed to this Court but without English translation.  To this end, I have asked the court interpreter to translate the content of the letter for the record.  It was said A2’s wife had breast cancer in 2013, and had operations.  A2 produced some medical documents to support his claim.  No one was able to help her.  A2 also has a 13-year old son.  In court today, A2 repeated what he said in the letter saying that his wife has cancer and he has to send money to her.  A2 said he had no criminal record in Hong Kong.  He was detained for 150 days in prison and that should be counted as part of his present sentence.

DISCUSSION

6.It is well accepted that a clear sentencing guideline was enunciated in HKSAR v Usman Butt [2010] 5 HKLRD 452 whereby a sentence of 15-month imprisonment after guilty plea is proper.

7.The Magistrate detailed A1 and A2’s mitigation in which he said,

“D2 [A1] is 38 years of age and a national of India. He entered Hong Kong on 30 November 2006 and was permitted to remain as a visitor until 3 December2006. He was subsequently arrested and handed over to the Immigration Department. A removal order was issued against him on 8 May 2007. He was released on recognizance on 29 June 2007, after being detained for 105 days. He is now a torture claimant in Hong Kong. He has 3 previous convictions, none of which are similar to the present offence.”[4]

8.As regards A2, the Magistrate said,

“D4 [A2] is also 38 years of age and a national of India. He entered Hong Kong on 17 August 2013 and was permitted to remain as a visitor until 31 August 2013. He was subsequently arrested and handed over to the Immigration Department. A removal order was issued against him on 7 October 2013. He was released on recognizance on 21 October 2013, after being detained for 43 days. He is now a torture claimant in Hong Kong. He has a clear record.”[5]

9.It is abundantly clear that both Appellants shared similar background, except that A1 had 3 previous convictions back in February 2007.[6] A1 had been detained for 105 days and A2, 43 days due to administrative detention.

10.The Magistrate acknowledged that whether such administrative detention should be given credit for a discount in sentence is a matter of discretion.  That said, the Magistrate took the view that,

“On the facts as admitted by the defendants, the administrative detention had nothing to do with the present offence which concerned their taking employment while removal orders were in force. The factual background of their administrative detention and the facts of the present offence were entirely unrelated. The periods spent in administrative detention were not connected to the present offence. Moreover, their detention, in particular that of D2 [A1], took place long before the present cases. Under the circumstances, I refused to exercise my discretion to deduct the time spent by D2 and D4 in administrative detention.”[7]

11.I totally agree with the remarks and observations made by the Magistrate.  The Appellants had applied for a review of sentence on 26 August 2015 on the same ground.  Their application was rightly refused.

12.Now, the Appellants repeated their similar application even though in their respective Form 102, they did not specifically mention about the issue of administrative detention.

13.In my view, the sentence so imposed on both Appellants is neither manifestly excessive nor wrong in principle.  The exercise of the discretion by the Magistrate for not giving credit of the days spent in administrative detention by the Appellants is totally proper.  I have voiced my serious concern in previous Magistracy Appeal cases[8] about the phenomenon and upsurge trends of torture claimants in Hong Kong.  The system is being abused, and is being abused sadly and badly, which clearly calls for certain remedial actions to be taken by the executive government.

14.I am of the view that offenders of similar offences with similar background should not expect any deduction from sentence as of right, even though he or she had been detained under any kind of administrative detention. The discretion should be exercised sparingly and only under special circumstances, in order to forestall the possibility of generating certain “legitimate expectations” or any “wishful thinking” from potential offenders.

CONCLUSION

15.For the reasons above said, I find the grounds of appeal against sentence by the Appellants are totally unmeritorious.  I dismiss their appeal.

16.I have also considered the issue of loss of time but decided against making such an order.

Mr Prakash L DARYANANI, Senior Public Prosecutor of the Department of Justice, for the Respondent HKSAR

The Appellants appeared in person