HKSAR v. Soyed Mohammed Abdur Rouf

HCMA 215/2018

[2018] HKCFI 2430

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 215 OF 2018

(ON APPEAL FROM STCC 4973 OF 2018)

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J U D G M E N T

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1.The appellant was convicted of an offence of “Prohibition of taking employment and establishing business” (Charge 2) by Magistrate Winnie Lau (“the magistrate”) after trial. He was sentenced to 21 months’imprisonment.

2.The appellant now appeals against his sentence.

3.The appellant was represented by the Duty Lawyer Service in the court below.

The facts

4.About 10:10 am on 19 December 2017, PC 24203 (PW2) was in plainclothes observing suspected illegal worker activities taking place at Wui Po Carpark, Kwai Chung Container Terminal (“the Carpark”).

5.Mr Cheung (PW1) was the driver of a medium goods vehicle (SS 7484).  He was at the Carpark loading goods for onward delivery. Two pallets of goods had to be repackaged with nylon strings and cling wrap by workers hired by PW1’s employer before they could be loaded onto PW1’s truck.

6.PW2 saw the appellant, who was wearing a pair of gloves, together with 2 middle-aged South Asian males, working on a pallet of goods.  The appellant used both hands to tie a nylon string on top of a pallet of goods.  Having observed the appellant for about 3 minutes, PW2 approached him.  The appellant suddenly turned around and fled.  PW2 gave chase and intercepted him about 5 metres away from PW1’s truck.

7.Immigration check revealed that a Removal Order was issued against the appellant on 2 March 2015, which was served on him on 5 March 2015.  The said Removal Order is still in force.

8.On 13 March 2015, the appellant was granted a Form 8 Recognizance.  He is not permitted to take up any employment, paid or unpaid, in Hong Kong.

Mitigation

9.The appellant is now 48 and has a clear record.  He is married with 2 sons and 2 daughters (aged 5 to 15).  He came to Hong Kong from Bangladesh in 2013 to escape from political persecution.  He claimed that his wife was ill and his mothers had a heart condition.

The magistrate’s Reasons for Sentence

10.In sentencing the appellant, the magistrate gave her reasons[1] as follows:

“ 12. In HKSAR v Usman Butt & Anor, HCMA 70/2010, the Court of Appeal laid down a tariff of 22 1/2 months’ imprisonment starting point for offences of this nature [applied in HKSAR v Khan BaBar, HCMA 645/2017].

13. Family circumstances are normally not a factor to be taken into account in sentencing: HKSAR v. Chan King Chung & Anor [2002] 4 HKC 314.

14. It was alleged at the trial that his wife had been hospitalized for dysfunctional uterine bleeding in December 2017. I disbelieved the defendant’s evidence given at the trial. I also noted from the background report that the defendant’s wife was being hospitalized for mental illness, i.e., hysteria disorder. The said mental illness was clearly different from the alleged uterinebleeding problem suffered by his wife. Further, as the defendant was able to tell the probation officer that his wife was suffering from mental illness, this, in my view, was inconsistent with his assertion that he had not received any clear information about his wife's condition due to complicated medical information. I did not believe that the mitigation concerning his wife’s health issue was true.

15. I also noted that there was no mention of the heart condition suffered by the defendant’s mother in the background report. If this had been true, I found it unbelievable that he had failed to mention it to the probation officer at all.

16. Despite my rejection of the above mitigations, I had not thereby enhanced the sentence.

17. Even if, as alleged, the defendant’s wife and his mother were having health issues, I did not consider them to constitute strong humanitarian grounds. Given the fact that the defendant had three other siblings, they should, in my view, be able to give some assistance in looking after his family.

18. On the facts of the present charge, the usual tariff of 22 1/2 months starting point was in my view wholly justified. I saw no reason to depart from it. He was convicted after trial and therefore not entitled to any guilty plea discount.

19. However, taking into account his personal circumstances,namely, his four young children and his wish to return home as soon as possible to take care of his family, I was prepared to deal with him leniently and reduce the said starting point by 1 1/2 months to 21 months.  I did not find any other matters which justified any further reduction.  I therefore sentenced him to 21 months’ imprisonment.”

Grounds of appeal

11.The appellant acted in person in the appeal hearing.  He claimed to be diabetic.  His wife is sick (initially gynecological problems and now mental illness) and his mother suffers from heart disease.  The appellant stated that he has abandoned his non-refoulement claim because he wants to go home as soon as possible to look after his 4 children. He asked for sympathy from this court by reducing his sentence.

My considerations

12.The magistrate was aware of the appellant’s diabetic condition as well as his family hardship[2].  She has explained clearly that the appellant’s personal and family circumstances do not constitute strong humanitarian grounds in terms of sentencing.  Be that as it may, the magistrate has displayed mercy by reducing the tariff starting point from 22 ½ months’ imprisonment to 21 months.

13.The appellant’s sentence is correct and I see absolutely no reason to interfere with it.

14.I have sympathy for people who need to escape from their homeland for various reasons (political, religious or otherwise) to seek refuge in a foreign territory.  Hong Kong owes those people nothing but has generously extended its hospitality to them.  The bottom line is they need to behave themselves and obey the law here.  This is certainly not one bit too much to ask for and is the least those people could do in return for the protection offered to them by Hong Kong.

15.Ms Fung for the respondent has in her written submissions fairly drawn my attention to the issue of deduction for administrative detention[3]. I agree with Ms Fung that the deduction does not apply in the present case.  It was not raised by the appellant’s trial counsel during mitigation either. I see no reason why I should exercise my discretion to reduce the appellant’s sentence on this basis.

16.This appeal has no merits whatsoever and must be dismissed.   

Ms Mickey Fung, SPP of the Department of Justice, for the respondent

The appellant appeared in person