HKSAR v. Djenepo, Sekou Ousmane

HCMA 656/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 656 OF 2016

(ON APPEAL FROM KCCC NO 3270 OF 2016)

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BETWEEN

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J U D G M E N T

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1.This Appellant appeals against a total sentence of 18 months’ imprisonment which he received in the Magistrates’ Court by way of concurrent terms of 2 months’ imprisonment for breach of condition through overstaying, contrary to Section 41 of the Immigration Ordinance, Chapter 115, and of 18 months’ imprisonment for possession of an unlawfully obtained travel document, contrary to Section 42(2)(i) and (4) of that Ordinance.  He pleaded guilty to the overstaying charge and was convicted after trial on the travel document charge.

2.The overstaying was for a period of one year and five months.  The Appellant holds a Mali passport.  The unlawfully obtained travel document was someone else’s Kenyan passport.  It was found in the Appellant’s possession at the time when he was apprehended for overstaying.

3.On the overstaying charge, the Magistrate looked at a number of past sentences, and said that he had regard to the length of the overstaying.  Doing so, he adopted a starting point of 3 months’ imprisonment.  He then discounted it by a third for the guilty plea to arrive at a sentence of 2 months’ imprisonment.

4.On the travel document charge, the Magistrate looked at a number of past sentences, and said that he bore in mind that there was no evidence that the Appellant had ever used or attempted to use the unlawfully obtained travel document for any illicit purpose.  Doing so, he arrived at a starting point of 18 months’ imprisonment.  He said that he found no ground for discounting that starting point.

5.The Appellant complains that he had been sentenced too severely.

6.While his position is that the Magistrate had passed a total sentence within the appropriate range, Counsel for the Respondent has very properly identified, for the benefit of the Appellant who is not legally represented, an argument for reducing the overall sentence to 9 months’ imprisonment by reducing the sentence on the travel document charge to a term of that duration while leaving the two sentences to be served concurrently.  The argument is a viable one, and I think it just to accede to it.

7.Doing so, I allow the appeal to reduce the overall sentence to 9 months’ imprisonment by way of concurrent sentences of 2 months’ imprisonment on the overstaying charge and 9 months’ imprisonment on the travel document charge.

8.So the appeal against sentence is allowed to that extent.

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

The Appellant appeared in person