HKSAR v. Shaikh, A Alim

HCMA 667/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 667 OF 2016

(ON APPEAL FROM STCC 182/2014)

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Date of Hearing: 14 February 2017

Date of Judgment: 14 February 2017

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J U D G M E N T

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1.While represented by a Duty Lawyer and having the assistance of an English/Bengali interpreter (he being a Bangladeshi), the Appellant pleaded guilty to three charges laid under the Immigration Ordinance (Cap 115) and was convicted thereon on his guilty pleas.

2.Charge 1 was of breach of condition through overstaying, contrary to Section 41. Charge 2 was of making a false representation to an Immigration Assistant lawfully acting under or in the execution of Part II of the Immigration Ordinance, contrary to Section 42(1)(a).  Charge 3 was of making a false representation to an Immigration Officer lawfully acting under or in the execution of Part III of the Immigration Ordinance, contrary to Section 42(1)(a).

3.The Appellant was sentenced to a term of 3 months’ imprisonment on Charge 1, a term of 4 months’ imprisonment on Charge 2 and a term also of 4 months’ imprisonment on Charge 3.  The terms on Charges 2 and 3 were made concurrent.  One month of the term on Charge 1 was made consecutive to the concurrent terms on Charges 2 and 3.  So the total sentence came to 5 months’ imprisonment.

4.Despite having pleaded guilty to all three charges, the Appellant confirms today that he appeals against his conviction on Charge 1.

5.The particulars of the offence under Charge 1 read:

“ SHAIKH, A ALIM, you are charged that on 25th of January, 2011 in Hong Kong you, being a person permitted to land in Hong Kong by an Immigration Assistant by virtue of section 11 of the Immigration Ordinance, did contravene a condition of stay in force in respect of yourself, namely, you were permitted to remain in Hong Kong for 14 days from your date of entry on 13 November 2006, and you did remain in Hong Kong on 25 January 2011.”

6.The brief facts of the case which the Appellant admitted at the time of his guilty pleas in the Magistrates’ Court read:

“ On 25 January 2011, the defendant namely SHAIKH, A ALIM, with date of birth as 10 November 1971 (ID1) surrendered to the Immigration Department for having overstayed. However, record revealed that the defendant had previously entered Hong Kong under another identity namely BATTU, SK ALIM with date of birth as 26 December 1965 (ID2). Case was investigated.

2. Record check revealed that the defendant first entered Hong Kong on the strength of a Bangladeshi passport under ID2 on 4 August 1999 and was permitted to remain as a visitor until 6 August 1999. He last entered Hong Kong under ID2 on 13 September 1999 and was permitted to remain as a visitor until 21 September 1999. Subsequently, he applied for extension of stay under ID2 for two times respectively on 21 September 1999 and 23 September 1999. Both applications were approved and he was last permitted to remain here until 28 September 1999. On 16 December 1999, he was arrested by the Police and was removed after legal proceedings. Currently, the defendant entered Hong Kong on the strength of a Bangladeshi passport under ID1 on 13 November 2006 and was permitted to remain as visitor until 27 November 2006. However, the defendant did not leave on or before this date as required and had since overstayed for 4 years and 1.5 months.

3. Three records of interview were taken on 1 February 2011, 10 February 2011 and 15 February 2011. Under caution, the defendant admitted that he was actually known as SHAIKH, A ALIM with date of birth as 10 November 1971 (ID1). In 1995, the defendant procured a Bangladeshi passport from an agent in Bangladesh at BDT $7,000 for coming to Hong Kong. He gave his name, photo and his father’s name for the arrangement. Four days later, he was given a Bangladeshi passport under the identity of BATTU, SK ALIM with date of birth as 26 December 1965 (ID2). He was aware that the date of birth under ID2 did not belong to him. Subsequently, he entered Hong Kong under ID2 for several times with the first entry on 4 August 1999. (Subject matter of additional charge (2)) The defendant had also applied for extension of stay in Hong Kong under ID2 on 23 September 1999. Upon which, he falsely represented that he was ID2. (Subject matter of additional charge (3)) Currently, the defendant entered Hong Kong under ID1 on 13 November 2006 and was permitted to remain as visitor until 27 November 2006. However, the defendant did not leave and overstayed since 28 November 2006 for 4 years and 1.5 months. (Subject matter of charge (1))

4. The defendant’s claim was recently finalized on 28 October 2016.”

7.No ground of appeal has been added to the pro forma grounds of appeal printed in the Appellant’s Form 101 Notice of Appeal.  Appearing before me today, the Appellant said that his lawyer at the trial did not explain clearly to him at the time the facts in relation to Charge 1 and that, because he was scared, he just said that he was guilty.

8.The Appellant was legally represented when he appeared in the Magistrates’ Court.  There was an English/Bengali interpreter in that court on that occasion, just as there is such an interpreter in this court now. 

9.Having considered everything that the Appellant has said to me today, I consider that the conviction which he appeals against, that is Charge 1, was entered on the basis of his unequivocal plea of guilty and acceptance of facts on which it was appropriate to accept that plea and enter a conviction accordingly.  I do not accept his allegation that the lawyer did not explain clearly to him the facts of Charge 1 at the time because the Summary of Facts was fully interpreted to the Appellant at the time.

10.There is no basis for this appeal.  It is therefore dismissed.

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

The appellant appeared in person