HKSAR v. Sarder Halal

HCMA 91/2018

[2018] HKCFI 1294

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 91 OF 2018

(On appeal from STCC 4568/2017)

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J U D G M E N T

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1.The Appellant faced a charge in the Magistrates’ Court of taking employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully, contrary to section 38AA(1a) and (2) of the Immigration Ordinance, Cap 115.  He was convicted after trial and sentenced to 22 months’ imprisonment.  He appeals against conviction and sentence, doing so on the pro-forma grounds of appeal against conviction and sentence set out in Forms 101 and 102 respectively. 

2.It was formerly admitted that at the material time the Appellant was remaining in Hong Kong without authority having landed unlawfully, was on recognisance and was prohibited from taking up any employment, either paid or unpaid. 

3.The prosecution led evidence to the following effect:  the Appellant and two other men were observed by police officers dismantling electrical appliances at a recycling site for about 15 minutes.  He was then intercepted and arrested.  The Appellant did not call or give evidence.  It was put on his behalf that he never worked at the site in question or was even ever present there. 

4.With the criminal standard and burden of proof in mind and after taking into account the Appellant’s clear record into account in respect of propensity, the Magistrate accepted the prosecution’s evidence as to what the Appellant was seen doing and concluded that the only reasonable inference to draw from that evidence was that he had taken up employment. 

5.All things considered, I am satisfied that there was evidence on which to convict the Appellant and that the magistrate made no error in how he went about convicting him.  The appeal against conviction is therefore dismissed.

6.I turn now to the appeal against sentence.  This is what the Magistrate said as to why he sentenced the Appellant, who was the 1st defendant, and his co-defendant, as he did:

“36. Both defendants were found guilty after trial. They are guests in Hong Kong on their own recognisance. On the goodwill of the Hong Kong society, they are given a chance to make their cases for their non‑refoulement claims. Conditions were imposed and it is clearly stated in their Form 8.

37. I am sympathetic to the fact that the defendants cannot be employed because of their status and it must be hard for them to support their families or, indeed, just themselves without a source of income. I am also fully aware of the limited support that the defendants get from the bodies that seeks to support them; Yet the law is clear that they are not allowed to be employed in Hong Kong.

38. The 1st defendant is aged 37. He came to Hong Kong in 2015, he is single and has a clear record.

39. The 3rd defendant is aged 29 and with a clear record. He came to Hong Kong in 2013, he is married and his wife is 5½ months pregnant.

40. In sentencing the defendants, my hands are bound by the tariff imposed by the higher courts. The higher courts have mandated a 15-months imprisonment on a plea of guilty (ref: HKSAR v. Usman Butt HCMA 70/2010). If a conviction is handed down after trial, it would mean, numerically, a 22-and-a-half-months imprisonment must be imposed bar special circumstances.

41. The defence advocate advanced mitigation and I see no special reason that I can substantially reduce the sentence. Within reason, I would round down the number to the month.

42. Accordingly, the 1st defendant was sentenced to serve 22-months imprisonment for Charge 1. The 3rd defendant was sentenced to 22-months imprisonment for Charge 3.”

7.As can be seen the Magistrate was, commendably, by no means without sympathy for these persons. But for the reasons which he gave, the sentence which he passed on the Appellant was warranted.  The appeal against sentence is therefore dismissed.

The Appellant, in person

Ms Claudia Ng, SPP of the Department of Justice, for the Respondent