HKSAR v. Junaid Ahmed

CACC 79/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 79 OF 2017

(ON APPEAL FROM DCCC NO 45 OF 2017)

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Before: Hon Macrae JA in Court

Date of Hearing: 28 November 2017

Date of Judgment: 28 November 2017

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J U D G M E N T

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1.Following his plea of guilty in the District Court before HH Judge G Lam (“the judge”) on 22 March 2017, the applicant was convicted of a single charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. On the same day, the applicant was sentenced to 22 months’ imprisonment, to run wholly consecutively to a sentence of 10 months’ imprisonment, which had been imposed on 29 December 2016 in respect of offences of theft and attempting to obtain property by deception[1], and which he was serving at the time.

2.By a Notice of application for leave to appeal (Form XI), filed on 29 March 2017, the applicant now seeks leave to appeal against his sentence.

The facts

3.On 15 August 2016, a burglary took place of a restaurant situated at the Ground Floor, Sunny Building, No’s 57-59 Wyndham Street in Central.  When the restaurant cook (PW1) returned to the building at 10 am, having earlier left the restaurant in tact at about 12:45 am that day, he discovered that there were signs of ransacking inside the restaurant.  The police were informed and fingerprints subsequently lifted from the scene, one of which on a cash box led the police to the applicant.

4.On 30 November 2016, the applicant was arrested for the burglary of the premises in question.  In a video recorded interview, the applicant admitted the offence under caution.  He said that he had kicked open the restaurant door.  The applicant was shown some bent tableware and he said that he might have used it to prize open the cash register.  He admitted that he had taken and subsequently consumed four bottles of wine and spent all of the cash in the cash register, amounting to some HK$3,500.

5.At the time of the offence and sentence, the applicant, who was originally from Pakistan, was the holder of a Form 8 Recognizance document issued by the Hong Kong Immigration Department, by virtue of which he was permitted to remain in Hong Kong as a screened‑in refugee pending resettlement in a third country.

Mitigation

6.The applicant was 33 years old at the time of sentencing.  At the time of the commission of the burglary offence, he had five previous convictions which included one offence of theft, one of burglary, one of robbery, one of attempted robbery and one of possession of dangerous drugs. By the time of his sentence, he was serving 10 months’ imprisonment in respect of further offences of theft and attempting to obtain property by deception, which had been committed after the offence with which the judge was dealing; the release date of which was in mid‑July 2017.

7.The solicitor representing the applicant at the sentencing hearing informed the court that the applicant and his family had come to Hong Kong in 2002 in order to escape persecution in Pakistan.  He had been granted refugee status but had been awaiting resettlement in another country for some 15 years.  It was submitted that the applicant was effectively living in an “open prison”.  He had developed a dependency on alcohol, which was said to have played a significant part in the commission of the present offence, since it was an opportunistic offence committed whilst the applicant was inebriated.

Reasons for sentence

8.The judge expressed sympathy for people such as the applicant who had left their countries of origin to seek refuge in another country.  He appreciated that disappointment and frustration may result from the unknown period of waiting for resettlement but it was not an excuse for committing crimes in this territory and refugees pending resettlement must behave themselves and obey the law.

9.Since the applicant was a Form 8 Recognizance holder, the judge considered the principles discussed in HKSAR v Norena Gutierrez Cristhian Andres[2]and held that the present offence had a serious detrimental effect on the community at large.  As such, his immigration status constituted an aggravating feature of the offence.

10.He held that the normal starting point for non‑domestic burglary should be 2½ years’ (or 30 months’) imprisonment.  Despite the applicant’s previous convictions in Hong Kong, he decided not to enhance the starting point for that reason but instead increased it by 3 months’ imprisonment because of his immigration status.  Given the plea of guilty, he reduced the sentence to 22 months’ imprisonment.  He then considered the application of the totality principle but decided that the present sentence should run wholly consecutively to his existing sentence of 10 months’ imprisonment.

Grounds of appeal against sentence

11.Mr Shek, on behalf of the applicant, has put forward three grounds of appeal against sentence, which are essentially as follows:

(1) The judge wrongly treated the applicant’s immigration status as an aggravating feature, when (i) the applicant was a mandated refugee rather than an asylum seeker; and (ii) the offence did not seriously affect the community at large and/or harm the reputation of Hong Kong;

(2) The judge failed in the circumstances to call for any background report; and

(3) The judge failed properly to consider the totality of the sentence for the present offence, when the applicant was already serving an existing sentence of imprisonment.

12.Mr Wong, on behalf of the respondent, opposes the application for leave to appeal.

Consideration

13.I do not propose on this leave application to go into a detailed analysis of the merits of each argument, which have been fully addressed by Mr Shek and Mr Wong in their respective written arguments.  I deem the argument under Ground 1 that there may be a difference for sentencing purposes between the position of a screened‑in refugee and a claimant for refugee status to be reasonably arguable; as is the question of whether the circumstances of this particular offence came within the type of offence for which an enhanced sentenced on the grounds of the applicant’s status was justified.  Similarly, I consider the argument under Ground 3 in relation to totality to be reasonably arguable.  Accordingly, I grant leave to appeal on Grounds 1 and 3.

14.However, I should sound this caution to the applicant.  It seems to me that if the judge had adopted a higher starting point for the present offence given the applicant’s bad record for offences of dishonesty, including one for burglary, the applicant could not have complained.  Indeed, the applicant’s persistence in offending is demonstrated by the fact that within a month of being released from a 5‑year sentence of imprisonment for attempted robbery, he committed the present offence[3].  Instead, the judge chose not to aggravate the starting point for his criminal record but to enhance it because of his immigration status.  Whatever the reason for enhancing the starting point, the Court of Appeal will be looking at the ultimate starting point and the eventual sentence to see if it was either manifestly excessive or wrong in principle.

15.Moreover, in respect of the totality argument, the Court will wish to know the circumstances of the theft and attempting to obtain property by deception offences and, in particular, whether the magistrate sentencing in respect of those offences on 29 December 2016 was aware that shortly before their commission, the applicant had been arrested for an earlier offence of burglary for which he was facing trial in the District Court[4]. It may also wish to know whether the applicant’s immigration status was taken into account in the sentence that was passed by the magistrate.  These matters may have a bearing on the overall totality argument in the present case.  I therefore order that the case papers and the reasons for sentence in respect of KCCC 4501/2016 be obtained and made available to the Court at the appeal.

16.As for Ground 2, the point is not reasonably arguable. The sentencing court was not obliged to call for any report, nor was the need for one indicated by the mitigation or the circumstances of the offence. Moreover, the applicant’s solicitor never suggested that any report might be prepared.  He was, as one can see from his plea in mitigation, more than capable of telling the judge what he needed to know for sentencing purposes. It does not now lie in the mouth of counsel on appeal to complain that something was not done at the sentencing hearing that should have been done, when it was not indicated on the facts, when it was not required as a matter of law, and when the applicant’s own experienced legal representative did not ask the judge to call for such a report.

17.Leave to appeal on Ground 2 is therefore refused.

Mr Derek Wong SPP, of the Department of Justice, for the Respondent

Mr Randy Shek, instructed by the Director of Legal Aid, for the Applicant