HKSAR v. Khatun, Halima

HCMA 336/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 336 OF 2016

(ON APPEAL FROM STCC NO 1277 OF 2016)

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J U D G M E N T

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1.The appellant, Halima Khatun, was charged with one count of taking employment while being a person in respect of whom a removal order is in force, contrary to sections 38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap 115, Laws of Hong Kong. 

2.The appellant pleaded not guilty to the charge.  She was convicted after a full trial.  She was sentenced to 22 months and 2 weeks’ imprisonment.  The appellant appeals against her sentence.

3.The magistrate summarised the facts of the case at paragraphs 4 to 7 of her Reasons for Sentence:

“4. It was an admitted fact in the trial that on 17 December 2014, a removal order was made against the defendant. On 27 December 2014, the defendant was released from custody on recognisance by the Immigration Department.

5. The defendant was aware that the removal order had been made and that it remained in force on the day of the offence, namely 5 April 2016. She was aware that she was not permitted to take up any employment, whether paid or unpaid, in Hong Kong.

6. The facts as I found them after trial were that, on 5 April 2016, PW1, the Immigration Assistant, went to 121 BC at Central, in Central, a restaurant in Central, posing as a customer to carry out observation. The defendant, who was wearing an apron, was seen standing inside the kitchen, spreading some orange paste on a tray with a knife repeatedly.

7. Subsequent identity check revealed that the defendant was a holder of a recognisance form.  Therefore, the defendant was found taking up unapproved employment as odd-job worker in Central on the material day while being a person in respect of whom a removal order is in force.”

4.The appellant is 29 years old.  She had a hitherto clear record.  The appellant is married and her husband is also in Hong Kong.  The couple’s stay is entirely supported by International Social Service which helped them to pay for the rent, food and other miscellaneous expenses.  Counsel for the appellant submitted that the appellant received no monetary gain in the incident.  He pleaded for a lenient sentence to be imposed on the appellant.

5.The magistrate considered the case of HKSAR v Usman Butt [2010] 5 HKLRD 452 before sentence.  The magistrate noted that the Court of Appeal in Usman Butt fixed a tariff of 15 months’ imprisonment after a plea of guilty in respect of section 38AA offences with the primary reason being deterrence.  The magistrate considered the whole circumstances of the case, including all the matters urged on the appellant’s behalf in mitigation.  She saw no reason why the tariff as set out in Usman Butt should not be followed.  The magistrate adopted a starting point of 22 months and 2 weeks’ imprisonment.  As the appellant was convicted after trial, the magistrate saw no reason to reduce the starting point taken.  For the above reasons, the magistrate sentenced the appellant to 22 months and 2 weeks’ imprisonment.

6.The appellant was represented by counsel at her trial.  She pleads in person before me.

7.The appellant, in her homemade grounds, submits that her sentence was too severe.  The appellant further stated in her homemade grounds that:

(1)   She accepted she had offended against the law in Hong Kong.

(2)   She was asked to plead not guilty and lie to the court by a lawyer[1] sent to her by her then employer.

(3)   Her son has kidney problems and a lot of of money is needed for his operation in Bangladesh.

(4)   Her first husband and sister were killed in Bangladesh because of political reasons.

(5)   The appellant met and married her second husband in Hong Kong.

(6)   She surrendered herself to the law in Hong Kong.

(7)   Three days after her arrest in the present case, the appellant’s son had an accident.  As the appellant is now in custody, she is unable to obtain any information about her son.

(8)   The appellant is worried that if she has to go to prison, her second husband might leave her for another girl.

(9)   The appellant needs to have a child with her second husband to make their relationship stronger.

(10)   The appellant asked for forgiveness and a lenient sentence.

8.The appellant tells me that her son is now being taken care of by a friend in Bangladesh.  Her friend has just informed the appellant that she refuses to take care of the appellant’s son any more.  The appellant says she wants to go to somewhere where she can work to support her son.  She says she committed the offence because she was ignorant of the law of Hong Kong.

9.Mr Daryanani, for the respondent, submits that the magistrate had rightly taken into consideration the sentencing guideline in Usman Butt which states that the sentence after a plea of guilty for the present offence is 15 months’ imprisonment.  As the appellant was convicted after trial, the sentence should be 22 months and 2 weeks’ imprisonment.

10.Mr Daryanani points out that the appellant had been detained for 48 days from 10 November 2014 to 27 December 2014.  The administrative detention was much earlier than the present offence which took place on 5 April 2016 and the detention was unrelated to the present offence.  Counsel who conducted mitigation on behalf of the appellant did not raise the issue with the magistrate.  Hence, the magistrate had not considered whether she should reduce the sentence because of the administrative detention.  The respondent submits that whether the magistrate should reduce the sentence because of the administrative detention is a matter for the magistrate’s discretion.

11.There are two schools of thought, the respondent submits.  Some magistrates reduce the period of imprisonment by the period of administrative detention as it would not be automatically deducted under section 67(1A) of the Criminal Procedure Ordinance, Cap 221.  See HKSAR v Sazzad Hossain, HCMA 863/2011.  Some judges take the view the period of administrative detention should not be discounted as it is unrelated to the criminal conduct.  See HKSAR v Eftakhar Beg [2015] 5 HKC 427 and HKSAR v Gurung Purna Bahadur, HCMA 210/2015.  Both schools of thought are from the Court of First Instance.

12.In the present case, as counsel for the appellant in the court below had not raised the detention period in his mitigation, there was no obligation on the part of the magistrate to consider the issue.  Mr Daryanani draws my attention to the judgement of Zervos J in Eftakhar Beg in which holding 4 of the judgment says:

“In future, magistrates when dealing with cases of this type should be appropriately informed of the correct status of any period of administrative detention and whether, in particular, it had been previously taken into account by the courts for any previous sentence imposed on the defendant. The magistrate would then be in a better position to address whether any period of administrative detention could or should be reduced from a custodial sentence imposed under section 67A(1A), and if not, whether under the court’s sentencing discretion, the period in custody which had not been previously taken into account in the reduction of a sentence, should nevertheless be reduced from the custodial sentence imposed in order to address any injustice or unfairness to the defendant.”

13.The respondent submits that the magistrate in the present case would unlikely have given any reduction in sentence due to the detention period as, (1) the detention was unrelated to the offence the appellant was convicted of; (2) the detention was for the period 10 November 2014 to 27 December 2014 and the offence date was 5 April 2016 which was over 15 months later.

14.I have considered everything that the appellant had urged on me today. The explanation offered by the appellant as to why she chose to plead not guilty at the trial is not something that I can take into consideration to reduce the sentence.  It was the appellant’s decision to plead not guilty to the charge.  She must accept full responsibility for her own decision.  It does not now lie on her mouth to complain that she should not have followed the advice of the lawyer sent to her by her employer.

15.I am sympathetic with the family circumstances and difficulties that the appellant is facing.  But family difficulties of the sort pointed out by the appellant cannot be considered as a valid mitigating factor which can reduce the sentence imposed on the appellant in the present case.  The tragic death of the appellant’s first husband and her sister had nothing to do with the offence in question and should not be considered as a valid mitigating factor.  I am also sympathetic with the condition of the appellant’s son in Bangladesh.  Sympathetic as I am, the health condition of the appellant’s son is not something that can reduce an otherwise proper sentence passed on the appellant by the magistrate. The appellant is worried that her second husband might leave the appellant for another girl if the appellant has to go to prison.  The relationship that the appellant has with her husband is something that she has to work out with her husband.  It is not a valid mitigating factor which can affect the sentence of the appellant.

16.As for the 48 days’ administrative detention which had not been considered by the magistrate, as Mr Daryanani rightly points out in his submissions, the administrative detention took place much earlier than the present offence which occurred on 5 April 2016, which was over 15 months after the administrative detention.  Furthermore, the period of detention was unrelated to the present offence.  In my judgment, the appellant should not be given any additional reduction in sentence due to the administrative detention. 

17.The magistrate had correctly applied the sentencing guideline in HKSAR v Usman Butt [2010] 5 HKLRD 452.  The case states that the sentence after plea of guilty for the present offence should be 15 months’ imprisonment.  The appellant was convicted after trial; the sentence should be 22 months and 2 weeks’ imprisonment.  In my judgment, the sentence of 22 months and 2 weeks’ imprisonment is neither wrong in principle nor manifestly excessive.

18.The appeal against sentence is dismissed.

Mr Prakash L Daryanani, SPP of the Department of Justice, for the respondent

The appellant appeared in person