HKSAR v. Shah Zafran Ali

HCMA 176/2019

[2019] HKCFI 1980

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 176 OF 2019

(ON APPEAL FROM ESCC NO 35 OF 2019)

____________________

____________________

Before: Hon Campbell-Moffat J in Court

Date of Hearing: 18 July 2019

Date of Judgment: 18 July 2019

_______________

J U D G M E N T

_______________

1.This is an appeal against sentence by the appellant, Shah Zafran Ali. Mr Shah is a Form 8 holder. He tells the court that he entered Hong Kong three to four years ago.

2.He pleaded guilty to a charge of using an identity card relating to another person and a charge of taking employment while being a person in respect of whom a removal order was in force.

3.On 22 February 2019, he was sentenced to a concurrent sentence of 15 months’ imprisonment by the learned magistrate, Mr Cheng Lim-chi.

4.I have dealt with the appeal of Mr Shah substantively, but there is the preliminary matter of the application for extension of time to appeal, for which the gentleman has not given any reasons.  I understand from his attached letter that the situation with his family, his wife and daughter, is becoming increasingly difficult and that is why he has appealed out of time to seek to reduce his sentence.

5.I will deal with the application for extension of time first.  The appellant hasn’t been able to provide any sufficient reason to establish sound reasoning for why he was late in seeking to appeal.  However, I am giving him the benefit of the doubt because clearly, communication with his family has caused him more concern, and I will allow him his extension of time to appeal.

6.But having dealt with the substantive appeal, he has not been able to provide any grounds which the court should properly consider.  I say that because in HKSAR v To Yiu Cho [2009] 5 HKLRD 309 the court referred to the principle that:

“Family hardship which is usually attendant upon the conviction is to be viewed as part of the price the accused must pay for the crime and that the adverse effect of imprisonment upon an offender’s family is not normally a factor to be taken into account.”

7.As I have said previously, there may be exceptional circumstances which may encourage the court to reconsider sentence, but I am afraid this is not one of them.  His daughter’s mental health issues were evident before he chose to come to Hong Kong.  She is in the care of the Al-Noor Clinic.  She is clearly receiving whatever treatment can be given to her and has the support of his wife.

8.I can see no evidence that in fact, his presence would make any actual difference at this moment in time, albeit it would obviously be of considerable assistance to both his daughter and his wife.

9.Unfortunately, however, he committed an offence in Hong Kong and for that he must be punished.  He received a sentence of 15 months.  If he behaves in prison, he would expect to receive a one‑third discount.  And if he truly means to return to Pakistan, he will urge the authorities to assist him in doing that and executing the removal order that remains extant as soon as he is released from prison, which will only be in a few months’ time.  I hope for his family’s sake, he does just that.

10.This appeal is dismissed.

Mr Eddie Sean SADPP, of the Department of Justice, for the respondent

The appellant appeared in person