HKSAR v. Saleem Asad

HCMA 376/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 376 OF 2017

(ON APPEAL FROM TMCC NO 715 OF 2017)

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Before: Hon D’Almada Remedios J in Court

Dates of Hearing: 5 & 26 September and 18 October 2017

Date of Judgment: 18 October 2017

Date of Reasons for Judgment: 24 November 2017

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REASONS FOR JUDGMENT

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1.The Appellant pleaded guilty to three charges before a Magistrate.[1] The first charge was of Using an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap 177, the second charge of Taking employment whilst a removal order was in force, contrary to section 38AA(1)(b) and (2) of Immigration Ordinance, Cap 115 and the third charge of Possession of an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap 177.

2.He was sentenced to a total of 20 months’ imprisonment (on 9 June 2017). The Appellant now appeals against his sentence.

The grounds of appeal

3.The Appellant does not make any complaint about the resulting sentence of 20 months’ imprisonment.  The Appellant who is unrepresented and in his home made grounds of appeal seeks a suspended sentence or a sentence to enable his immediate release on humanitarian grounds so that he may care for his ailing family. The Appellant expressed great worry about his wife and children.  He avers that without his presence to care for his family their health and welfare will continue to spiral rapidly downwards.  As they have no or insufficient support from any person or organization he wishes to fill the void.

4.His request is for him to be reunited with his family as soon as possible so that he can concentrate and look after their well-being.  He has submitted medical documents in support of his wife’s deteriorating health and psychological condition.  As his wife is in such poor health this is effecting the health of his son and possible psychological impairment of his daughter. 

Facts of case

5.In early March 2017, the Appellant applied for a job as construction worker at a company.  He presented a false Hong Kong Identity Card (“HKID”) and a Construction Worker card in the name of Shoukat Iqbal to the manager of the company (Charge 1).  The Appellant commenced work at the warehouse in Pat Heung, New Territories (“the Warehouse”) from 7 March 2017.

6.At around 1514 hours on 16 March 2017, the Appellant was found wearing a vest bearing the Company’s name at the Warehouse by the police.  Upon demand by PC 6824 the Appellant produced the HKID the Appellant used earlier to apply for the job at the Warehouse which was already reported “Loss”.  The HKID was genuine but belonged to another male Shoukat Iqbal (Charge 3).

7.Further checking revealed that the Appellant was an over-stayer.  He arrived in Hong Kong on 11 March 2014 with his Pakistani passport and was permitted to remain as a visitor until 18 March 2014.  The Appellant had overstayed since 19 March 2014.  He surrendered to the Immigration Department for overstaying and applied for torture claim and was released on recognizance on the same day. A Removal Order was issued against him on 19 January 2016. 

8.The Appellant was found to have taken employment on 16 March 2017 whilst his removal order was in force (Charge 2).

Mitigation

9.The Appellant, aged 34, comes from Pakistan.  He has a clear record.  Both he and his wife are torture claimants.  He and his wife rely on subsidies. They have a daughter who is two and a half years old and a son who is four months old.  Both of the Appellant’s children were born in Hong Kong.

10.The Appellant used to work as an assistant accountant of Thai Airways in Pakistan.

11.The Defence counsel urged the Magistrate to consider passing a suspended sentence due to exceptional circumstances.  It was submitted that the Appellant’s wife suffered severe depression and abdominal pain after giving birth to the younger son in January 2017.  The wife requires treatment as a result of depression and anxiety.  She thus cannot look after the children. The Appellant therefore needs to be responsible for looking after the children. The Appellant has no family ties or friends in Hong Kong to seek help from.  The Social Welfare Department or International Social Service (“ISS”) cannot offer assistance because of their immigration status. 

12.It was also submitted that the Appellant had found the HKID Identity on the ground.  He was in heavy debt because the ISS cannot provide him with necessities for his children as they were born in Hong Kong.  Therefore, due to extreme financial difficulties, the Appellant committed the present offences.

Reasons for sentence

13.In relation to charge 1 and 3 the Magistrate found that the Appellant was an over-stayer and he used the HKID relating to another to hide his true identity for the purposes of finding employment.  She found no reason to depart from the guideline case in HKSAR v LI Chang-li [2004-2005] HKCLRT 193 and imposed the sentence of 15 months’ imprisonment after his plea of guilty for Charge 1, and 12 months’ imprisonment after his plea of guilty for Charge 3.

14.For Charge 2, the Magistrate considered the facts and HKSAR v Usman Butt [2010] 5 HKLRD 452.  The Magistrate found no reason to depart from the tariff in Usman Butt. She imposed a sentence of 15 months’ imprisonment after plea.

15.She ordered the sentences in Charges 1 and 3 to be served concurrently because the reason the Appellant possessed the HKID related to another was to use it to hide his true identity and to find work.

16.For Charge 2, the Magistrate found the nature of the crime was quite different from Charges 1 and 3.  Having considered totality and the personal circumstances of the Appellant, the Magistrate ordered 5 months in Charge 2 to be served consecutively with the rest of the sentences. 

17.Thus, the Appellant was sentenced to a total of 20 months of imprisonment for the three charges.

18.The Magistrate declined to impose a suspended sentence as she did not find it appropriate.  She said[2] :

“…. I have carefully considered the problems the Defendant and his family will face if the Defendant is imprisoned. Despite great sympathy towards the Defendant’s situation, I do not find it appropriate to suspend the sentences I pass against the Defendant.”

19.At the time of sentencing the Magistrate did not have the benefit of a social welfare report before her.  It is apparent that she recognized the difficulties faced by the wife and children and thus after sentencing the Appellant ordered the Social Welfare Department to go the Appellant’s residence to assist the family.  From the transcript it can be seen that the Magistrate said[3] :

“Court : and I see the reaction of the wife just now. The wife is not party to the proceeding. I have no jurisdiction over her whatsoever but, if the condition is really not good, the defence might consider whether she should be alone or she need medical help.”

20.A social welfare report was thereafter submitted to the Magistrate a week after sentencing.

The Respondent’s submissions

21.At the first hearing date of the appeal Ms Chan, counsel for the Respondent submitted that family background and economic pressure were not mitigating factors and thus the Magistrate rightly rejected imposing the suspended sentence.  However, on the last day of the hearing of the appeal after the Social Welfare Report dated 12 October 2017 was received, Ms Chan maintained her earlier submissions although this time, with less vigor.  Ms Chan acknowledged the Appellant’s extraordinary family circumstances as highlighted in the report and submitted that if the court was going to exercise leniency on the Appellant then a suspended sentence would be appropriate.

Issue on Appeal

22.The Magistrate applied the correct tariff in imposing the sentences in charges 1 to 3.  The only issue in this appeal is whether there are humanitarian grounds which justify the court reducing the Appellant’s sentence as an act of mercy.

Discussion

23.Having received the Appellant’s 5 page self-drafted grounds of appeal which he titled “witness statement” (“statement”), I called for a Social Welfare Report (“second SWR”).  This was dated 12 October 2017.

The first Social Welfare Report

24.The Social Welfare Report (“first SWR”) called for by the Magistrate was submitted approximately a week after the Appellant was sentence.  It was a very brief report dated 16 June.  The probation officer concluded:

“4 …The defendant’s family has been receiving welfare services from ISS and no immediate childcare problem was indicated. Moreover the welfare of the defendant’s family will be continuously followed up accordingly.”

The second Social Welfare Report

25.The second SWR dated 12 October 2017 reflected a contrasting position of the family from the first SWR.  It was a detailed report.  It set out comprehensively the Appellant’s family background and present family condition whilst in Hong Kong.  In compiling the second SWR the probation officer had collateral contacts with the social worker of the ISS handling the case for the family, the officer-in-charge, the medical social worker of Medical Social Services Unit, Kwai Chung Hospital of the Social Welfare Department (“SWD”) and the senior social work officer of the Family and Child Welfare Branch of the SWD. 

26.In summary the second SWR set out the following: the wife is aged 30 and also comes from Pakistan.  She has a master’s degree in business administration.  In Pakistan she worked for a telecommunications company prior to marrying the Appellant.  The medical officer assessed the wife to be suffering from Moderate Depressive Episode after the birth of her son.  She also presented with other medical problems such as left side paralysis, severe abdominal pain and frequent spells of fainting. 

27.The wife lives alone with the two children.  As the wife often fainted and lost consciousness it poses a great risk to the wife and children if nobody is present.  The medical officer opined that in view of the wife’s medical condition the wife is unfit to take care of her children.  He assessed the wife’s repeated fainting spells could be due to her underlying unstable emotion.  The wife’s depression was at a stage where she was suffering from poor and unstable emotions that she felt her life was so desperate that she had threatened to end her life if not for the children.  The probation officer observed that as seen in the photos in his home visit the wife’s looks had changed noticeably from what it was before the Appellant’s remand and after. He stated “her skin colour even turned gloomy.” 

28.The probation officer accepts that the Appellant and his wife have a poor social network in Hong Kong.  The wife has no friends in Hong Kong.  An example of the wife’s lack of friends, was when the son was hospitalized for pneumonia for a few days in early October 2017.  Despite the wife attempting to seek help from some charitable organisations no assistance was available.  The wife desperately sought the help of a woman whom she met in the park to look after her daughter whilst she was with her son.  When the daughter returned home to her mother the daughter appeared to be emotionally disturbed.  After this experience the wife is reluctant to hand over the care of the daughter to anyone else but the Appellant.  The probation officer revealed that the Appellant takes very good care of his wife and children. 

29.It was further noticed by the probation officer that it was easy for the son to fall ill.  In view of the wife’s condition she had difficulty feeding her baby son.  He was thin and believed to be underweight.  As stated, the son was admitted into hospital with pneumonia. 

30.The daughter had a stronger attachment to her father than her mother. The daughter was fed by the father and not the mother, the upshot of this is the mother is finding it difficult to take care of the daughter in the absence of the Appellant.  The daughter was also becoming insecure without the presence of the father. 

31.The probation officer noted that the Appellant is deeply remorseful for the commission of these offences which he committed due to financial pressure to assist the family.  He expressed in the concluding three paragraphs of the second SWR the following :

“ 18….what the wife really wants is not any kinds of formal service but the immediate support and comfort from the Appellant, which no formal service can take the place of.

19… it is believed that the Appellant has learned a hard lesson. Deep love with the wife and the children, the appellant’s confession and pledge for law-abiding life in future is of ground.

20. If there is a chance of a suspended sentence, it is not for the sake of the Appellant but for the poor wife and children. The social investigation revealed that the Appellant is of indispensable and replaceable importance to his wife and children….”

32.It has long been stated in this jurisdiction that ill-health or domestic circumstances, will not, by itself usually be a sufficient justification for a reduction in sentence see HKSAR v Bayanmunkh [2012] 2 HKC 233, 239. Similarly, family circumstances are normally not a factor to be given any weight in sentencing see HKSAR v Chan King Chung & Anor [2002] 4 HKC 314.

33.It is appropriate to acknowledge the strictness to the principle that the courts cannot be deflected by such considerations and should apply the law firmly and consistently.  However, the court stated in Bayanmunkh that the extension of mercy has always been part of a judge’s armory in dispensing justice. 

34.There has been a plea of guilty from the outset, there is clear contrition by the Appellant.  It is evident that this is one such case where the court should extend mercy to the Appellant.  In this case upon consultation with all collateral contacts as mentioned above the probation officer has recommended that the Appellant be reunited with his family.  The wife has no relations or friends.  The family have no support.  Although there is follow up and assistance from ISS, that has proved to be insufficient for this family in these circumstances.  There is credible evidence that the Appellant’s absence from his wife and children has been highly detrimental to the health and welfare of the family.  The accumulation of the personal circumstances of the family as highlighted in the second SWR including those that have arisen post-sentence are in my view wholly exceptional circumstances for the court to temper justice with mercy. 

35.I accept that on the specific facts of this case it is appropriate that leniency be extended to the Appellant.  As the Appellant has served part of the sentence initially imposed, I allow the appeal and reduce the sentence to one of 4 months’ imprisonment in order for the Appellant to be released immediately.

Ms Chan Sze Yan, SPP (Ag) of the Department of Justice, for the respondent

The appellant appeared in person