HKSAR v. Aamir Nadeem

HCMA 191/2022

[2022] HKCFI 2516

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 191 OF 2022

(ON APPEAL FROM STCC 3610 OF 2021)

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J U D G M E N T

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1.The Appellant was charged with one count of “taking employment while being a person in respect of whom a removal order is in force”, contrary to sections 38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap 115. He pleaded guilty before the learned Acting Principal Magistrate and was sentenced to 15 months’ imprisonment.

2.The Appellant applied subsequently for review of the sentence and the learned Acting Principal Magistrate having considered the application, refused his application. He appealed against his sentence.

3.The facts are all too common, the Appellant was observed to be putting some packed furniture onto a pallet truck and conveyed them from the lift lobby to one of the residential units in the building. Subsequently, he was intercepted by the police. It was discovered that the Appellant was subject to a removal order served on him in August 2016.

4.The Appellant is 41 years old and has no previous convictions in Hong Kong. He came to Hong Kong in 2015 as a torture claimant. His parents, his daughter and son are all in Pakistan.

5.The learned Acting Principal Magistrate having correctly referred to the authorities, followed the sentencing guideline of 15 months’ imprisonment for a plea of guilty in relation to offences of this nature, see HKSAR v Usman Butt & Another[1].

6.The Appellant applied for a review of sentence. He submitted to the learned Acting Principal Magistrate that the learned Acting Principal Magistrate should have deducted the days that he had spent at the Castle Peak Bay Immigration Centre, and also the 183 days in another case.

7.The Appellant also submitted to the learned Acting Principal Magistrate that his mother is ill and that he needs to take care of her and also his children.

8.Of course whether the Court discounts the periods of Administrative or Judicial Detention is a discretionary consideration. After very careful consideration, the learned Acting Principal Magistrate considered that the matters put forward by the Appellant did not amount to mitigating factors which would warrant a deduction in sentence. Therefore, he refused the application for a review of sentence.

9.In the present appeal, he had lodged two Grounds of Appeal, again submitting that the period of his detention of 183 days when he was remanded in custody for another case, and he was subsequently acquitted of that case, should be deducted from the present sentence. He repeated again the ground that he wanted to take care of his children because of his mother’s illness.

10.I had read the learned Acting Principal Magistrate’s Reasons for Sentence, and reasons for referring to exercise his discretion to discount the detention period. Before this Court can interfere with the discretion of a Magistrate, there has to be an error made in the exercise of that discretion. There was nothing wrong with the sentence of 15 months’ imprisonment imposed. It was neither manifestly excessive nor wrong in principle.

11.As for the exercise of the discretion, the learned Acting Principal Magistrate has set out his reasons for not exercising his discretion in favour of the Appellant, and I can see no error in that decision.

12.So the appeal is dismissed.

Ms Ivy Chan, PP of the Department of Justice, for the Respondent

The Appellant acting in person