HKSAR v. Ali Haider

HCMA 443/2021

[2021] HKCFI 3670

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 443 OF 2021

(ON APPEAL FROM STCC 10 OF 2018)

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Before: Hon Toh J in Court

Date of Hearing: 24 November 2021

Date of Judgment: 24 November 2021

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JUDGMENT

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1.The Appellant had pleaded not guilty before the learned Magistrate, Ms Stephanie Tsui, to one count of “Remaining in Hong Kong without the 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. He was then convicted and sentenced to 22 months and 2 weeks’ imprisonment. 2 weeks’ imprisonment was to run concurrently to the sentence he was serving in another case.

2.The Appellant appealed against conviction and sentence.

3.At the hearing of the appeal, the Appellant withdrew his appeal against his conviction and proceeded on his appeal against sentence.     

4.The Appellant’s ground of appeal was that the learned Magistrate should have given him a lighter sentence in view of the fact that he was serving another sentence.  In fact, what he is saying is that he wants this Court to make the sentence he is serving for this offence to be largely concurrent with the previous offence. 

5.I have read the learned Magistrate’s Reasons for Sentence.  The learned Magistrate was well aware that the Appellant was serving a 24 month’s imprisonment for trafficking in a dangerous drug. 

6.The date of this offence and the nature of this offence is quite distinct and separate from the previous offence he is serving.  Therefore, the learned Magistrate having correctly arrived at a starting point of 22 months and 2 weeks, then made 2 weeks of the imprisonment in the present case concurrent to the previous sentence he was serving due to the totality principle.        

7.I cannot see that the learned Magistrate had in any way made any mistake either in principle or in law, nor is the sentence manifestly excessive.  So there is no reason to interfere with the sentence imposed by the learned Magistrate and the appeal against sentence is dismissed.     

8.As the Appellant had asked to withdraw his appeal against conviction at the beginning of this appeal, I had allowed him to do that and so his appeal against conviction is also dismissed. 

Ms Winnie Mok, SPP and Ms Cordelia Yeung, PP of the Department of Justice, for the Respondent

The Appellant acting in person