HKSAR v. Ahmed Mohammad Sujon

HCMA 612/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 612 OF 2015

(ON APPEAL FROM STCC 2566 OF 2015)

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J U D G M E N T

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1.The Appellant, who was D2 in the charge sheet, pleaded guilty to one count of taking employment while unlawfully remaining in Hong Kong[1] before Magistrate Cheang Kei Hong, and was sentenced to a term of 15-month imprisonment. The Appellant was represented at trial by Duty Lawyer, but was not represented at these appellate proceedings.

THE PROSECUTION CASE

2.The Appellant was arrested by the police on 19 June 2014.  He was detained for 46 days and then released upon recognizance on 3 August 2014. On 10 August 2015, the police found the Appellant, together with 3 other persons, inside a hut in a recycle yard in Lok Ma Chau.  There were heaps of used clothes, a compressing machine and some carts.  The Appellant was seen sorting out neck ties from used clothes. 

GROUNDS OF APPEAL AGAINST SENTENCE

3.The Appellant filed Form 102 on 21 September 2015 saying that the sentence was too severe.  The Appellant also sent a letter to the Department of Justice dated 12 January 2016 stating that he had “spent 46 days in CIC, which should have deducted” from his sentence.  In court today, the Appellant reiterated his stance and pleaded that his period of administrative detention should be taken into account.

DISCUSSION

4.The sentence of 15-month imprisonment imposed by the Magistrate is in line with the authority, but that is not the main focus of the present appeal. The Magistrate considered the case of HKSAR v Usman Butt and another [2010] 5 HKLRD 452 and also the issue relating to administrative detention in various cases [2] and took the view that “D2 [the Appellant] was not entitled to any sentence reduction under section 67A(1A) of the Criminal Procedure Ordinance because the present offence, ie taking employment unlawfully, was unrelated to the administrative detention which was not immediately prior to his first appearance in any proceedings relating to the present offence.”[3]  The Magistrate refused to exercise his discretion to reduce the sentence.

5.I totally agree with the remark made by Magistrate.  I have mentioned in previous similar Magistracy Appeal cases that such a discretion should be exercised sparingly and under special circumstances.  The offender should not have the expectation that the period of his administrative detention will be taken into account for a reduction of any sentence which was imposed upon the offender.  When the offender committed an offence, it was his choice and no one but himself is to blame.

CONCLUSION

6.Based on the abovesaid reasons, I refuse the Appellant’s appeal against sentence.      

Mr Edmond Lee, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent, HKSAR

The appellant appeared in person