HKSAR v. Hassan Wazid

HCMA 366/2019

[2020] HKCFI 2790

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 366 OF 2019

(ON APPEAL FROM STCC NO 4030 OF 2018)

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J U D G M E N T

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1.The appellant was convicted on his own plea before a magistrate of one charge of “Remaining in Hong Kong without authority of the Director of Immigration after having landed unlawfully in Hong Kong”, contrary to section 38(1)(b) of the Immigration Ordinance, Cap 115. The appellant was sentenced to 15 months’ imprisonment 5 months of which was to run concurrently with the 6 years 6 months’ imprisonment sentence he was already serving under HCCC 119/2018.

2.The appellant appeals against sentence.

3.The appellant was represented by Duty Lawyer in the proceedings below.  Here, he acts for himself.

Grounds of Appeal

4.In Form 102, the appellant merely adopted the printed general ground of “my sentence was too severe”.

Reasons for Sentence

5.The reasons for the appellant’s sentence were encapsulated in the “Reasons for Sentence” prepared by the magistrate.  The relevant part is reproduced below:

“2. The undisputed tariff for this offence, for a first offender and on a guilty plea, is 15 months’ imprisonment. In this case there is no valid justification to depart from the same.

3. The defendant is a 35 years old man from Bangladesh. He surrendered to the Immigration Department on 22 October 2015.

4. On the day of conviction, he was serving a term of imprisonment of 6 years and 6 months in respect a conviction of Trafficking of Dangerous Drugs on 20 August 2018.

5.   Having heard the defence Counsel’s mitigation I found no valid factor to justify departure from the tariff.  I note however although the sentence order he is serving is in respect of a separate and distinct crime, the present conviction would result in a much longer sentence order.  Therefore, I consider it appropriate to exercise my discretion in his favor by ordering 5 months of the present sentence to run concurrently.  Therefore, in respect of the present offence the defendant only has to serve an additional 10 months.”

My Consideration

6.I have considered all submissions presented by both sides.

7.The appellant repeats the mitigation pleaded before the magistrate that he had a wife and two young sons waiting for him in Bangladesh.  He adds that he has elderly parents whose health is not good.  He yearns for early reunion.

8.Needless to say, these are not valid mitigation factors.

9.The appellant then gives two magistracy case numbers (without providing the papers) and claims that the defendants in those cases faced the same charge but their effective sentence was only 6 months’ imprisonment whereas the appellant’s was 10 months.

10.The respondent helpfully confirmed that the defendant in each of the two cases was imposed a sentence of 12 months’ imprisonment 6 months of which was to run concurrently with the much lengthier sentence that each was already serving for trafficking in dangerous drug(s).

11.Even so, very little else was known about the circumstances of those two cases or their defendants.  In any event, the sentences imposed there have no binding force on any magistrates or this court.

12.Rather, the most important thing is whether the magistrate in this case got the sentence right or wrong.  As the respondent has correctly submitted, the magistrate was clearly alerted to the guideline in R v So Man King & Ors [1989] 1 HKLR 142.

13.For my part, I can only say that the magistrate has already been extremely merciful to the appellant by ordering 5 months of the archetypal 15 months’ imprisonment sentence upon plea to be served concurrently with the sentence that the appellant was then serving.

14.As an extra note, I am grateful to Mr Felix Tam of the respondent for having checked and confirmed with the Immigration Department that the appellant had never been placed under administrative detention upon his surrendering to the said Department.

Conclusion

15.The sentence is far from wrong in principle or manifestly excessive.  As such, the appeal against sentence is dismissed.  I confirm the sentence imposed.

Mr Felix Tam, SPP of Department of Justice, for the Respondent

The Appellant appeared in person