HKSAR v. Abdikarim, Mohamed Khalif

HCMA 126/2024

[2025] HKCFI 1177

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 126 OF 2024

(On appeal from ESCC 415/2023)

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BETWEEN

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REASONS FOR JUDGMENT

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1.I allowed the appeal on 19 March 2025 with reasons reserved. These are the reasons.

2.The Appellant was charged with one count of criminal intimidation, contrary to section 24 (a)(i)  of the Crimes Ordinance, Cap 200 (Charge 1)  and one count of possession of offensive weapon, contrary to section 33(1)  and (2)  of the Public Order Ordinance, Cap 245 (Charge 2).  He pleaded not guilty, was convicted of both charges after trial and sentenced to a total of 5 months’ imprisonment on 1 March 2024.

3.On 15 March 2024, the Appellant filed notices to appeal against both the conviction and the sentence.  He subsequently abandoned the appeal against the conviction and only proceeded with the appeal against the sentence.

The facts

4.The relevant facts can be briefly summarised like this.  The incident took place on the 2^nd Floor of the Immigration Tower.  The Appellant refused to line up and did not cooperate with a security guard (PW1)  when there were many people waiting in the queue.  He let out his anger and threatened PW1 several times.  He further intimidated PW1 by opening his backpack and showing a knife inside to him. 

The Appellant’s background and mitigation

5.The Appellant is aged 29, a divorcee with a son aged 7 under his care.  He is a non refoulement claimant, a Form 8 holder on recognizance.  His son has severe difficulties in learning and requires special education such as speech therapy.

6.During mitigation, defence counsel urged the court to consider the knife in question was kept inside the Appellant’s backpack all along and was never displayed in public. It was a matter out of anger and frustration when the incident took place.  No one was injured.  There was no question of triad affiliation or involvement of any third party.

7.The defence further submitted that the Appellant had been remanded in custody since his arrest on 20 June 2023 up to 22 August 2023 when he was given bail in High Court.  The defence asked for a lenient sentence. 

Reasons for sentence

8.The magistrate had considered the nature and the gravity of the offences.  She considered what the Appellant did was a barbarian act and could not be accepted by any civilised societies.  Charge 2 in particular was serious as it was an excepted offence.

9.The magistrate had also considered the Appellant’s two previous conviction records in 2014 and 2015, both were criminal damage and related to violence.

10.The magistrate took the view that the court had a duty to send a clear message to the general public that officers such as security guards on duty should be protected.

11.There was an aggravating factor arising from the Appellant’s status as a Form 8 holder.  He committed the present offences as a foreign national.  He had abused the hospitality and the liberty offered by the Hong Kong Government and the crimes which he had committed had affected Hong Kong’s reputation for order and security, which went to the essence of Hong Kong’s integrity in the international community. 

12.Having considered the defence’s mitigation, the Appellant’s personal background and the period of time which he was remanded in custody, also the fact that he did not take out the knife from his backpack and display it in public, the magistrate took two months’ imprisonment as the starting point for Charge 1 and enhanced it by two weeks to reflect the Appellant’s Form 8 holder’s status.  The sentence for Charge 1 was two months and two weeks’ imprisonment.  For Charge 2, the magistrate took four months’ imprisonment as the starting point, enhanced it by one month because of the Appellant’s Form 8 holder’s status.  The sentence for Charge 2 was five months’ imprisonment.

13.The magistrate then considered the totality principle and the nature of the offences.  She ordered the two sentences to be served concurrently so that the final sentence should be five months’ imprisonment.

Ground of appeal

14.Counsel for the Appellant basically relied on one ground of appeal, namely, that the magistrate failed to give any or sufficient weight to various matters in the case, including (a)  the knife was kept in wrapping or sheath and remained in the Appellant’s bag throughout the incident, (b)  no violence had been used or attempted to be used, (c)  the Appellant’s domestic situation in particular his parental responsibilities and duties towards his son, (d)  physical damage to the Appellant’s home and (e)  the fact that the Appellant had been remanded in custody for 64 days before the trial.

15.It was submitted that the sentence was manifestly excessive and/or wrong in principle.  I was urged to vary the sentence to “time already served” so that the Appellant could now be released to take care of his son.

Respondent’s submissions

16.The Respondent submitted that the ground of ground should fail, the sentence imposed by the magistrate was neither manifestly excessive nor wrong in principle, this appeal against the sentence should be dismissed, and that the Appellant should be ordered to serve his remaining term of imprisonment, which I was told after confirmation with the Correctional Services Department to be 31 days.

17.The Respondent, however, for the sake of fairness, confirmed as per the Appellant’s request and brought to my attention two additional matters, (1)  the Appellant’s administrative detention by the Immigration Department of a total of 117 days in 2012 which was unknown to the magistrate at the sentencing process (and the Respondent accepted that it should have been made known to the magistrate to consider); and (2)  the Appellant’s time spent in custody of a total of 18 days from 4 to 21 August 2024 for an unrelated drug case which was eventually withdrawn and not proceeded with.

My Decision

18.I have considered all the circumstances of the case and those of the Appellant, include the offences and the facts as well as the Appellant personal and family background.  I am not convinced that the final sentence or the individual sentences under the two charges as decided by the magistrate are wrong in principal or manifestly excessive.  The matters raised by the Appellant under the ground of appeal as described above had all been properly considered by the magistrate.  The ground of appeal failed.

19.Nevertheless, the above two additional matters fairly brought up or confirmed by the Respondent deserve further consideration.

20.For the first matter of the Appellant’s previous administrative detention by the Immigration Department, I was referred by Mr Daryanani for the Respondent to the case of HKSAR v Eftakhar Beg [2015] 5 HKC 427 where Mr Justice Zervos observed at paragraph 40 of the judgment:

“In future, magistrates when dealing with cases of this type should be appropriately informed of the correct status of any period of administrative detention and whether, in particular, it has been previously taken into account by the courts for any previous sentence imposed on the defendant. The magistrate is then in a better position to address whether any period of administrative detention can or should be reduced from a custodial sentence imposed under section 67A(1A), and if not, whether under the court’s sentencing discretion, the period in custody which has not been previously taken into account in the reduction of a sentence, should nevertheless be reduced from the custodial sentence imposed in order to address any injustice or unfairness to the defendant.”

21.Mr Daryanani also referred me to another similar case HKSAR v Sauj Mondol HCMA 762/2011 (unreported), Deputy High Court Judge A. Wong (as he then was)  commented at paragraph 12 of the judgment:

“The Magistrate had fairly and appropriately made the deduction on the basis that the 119 days which the Appellant spent in administrative detention would not be taken into account when the Correctional Services Department is to determine the length of custody pursuant to the present sentence.”

22.In that case, the sentencing magistrate gave a discount of 4 months from the starting point of 22 months and 2 weeks’ imprisonment after taking into account the 119 days of administrative detention served by that Appellant.

23.On the other hand, in another case HKSAR v Gurung Purna Bahadur HCMA 210/2015 (unreported), Mr. Justice P. Li when agreeing with the sentencing magistrate’s decision of not exercising her discretion of reducing any of the sentence for the administrative detention, commented at paragraph 12 of the judgment:

“The only issue is whether the magistrate should have exercised her discretion for reducing the sentence. In my view, there must be sound basis for exercising the discretion. Factors may include the time lapse between the detention period and the subsequent offence; the length of the detention period; the nature and circumstances of the subsequent offence and humanitarian grounds etc.”

24.On the second matter relating to the Appellant’s 18 days of custody spent for an unrelated case which was eventually not proceeded with, Mr Daryanani referred me to three case, HKSAR v Iqbal Zahid [2018] 2 HKLRD 832, HKSAR v Singh Jaspreet [2017] 2 HKLRD 727 and HKSAR v Asjad Baig [2023] 1 HKC 32.  In summary, that period of custody in unrelated matter was recognized and taken into account in the appeal against sentence in the first two cases but not the last one.  Suffice to say, it should be a matter of fairness for the court to consider whether or not, and to what extent, to exercise its discretion to determine a just and appropriate sentence.

25.Having considered all those circumstances, including the total number of days which the Appellant had spent in custody (135 days in total (117 days of administrative detention plus 18 days for an unrelated matter subsequently withdrawn))  and also the number of days remaining in his current term of imprisonment (31 days), I am prepared to exercise my discretion to vary the current sentence of 5 months’ imprisonment to the extent which would lead to his immediate release.  This appeal against the sentence is allowed to that extent. 

Mr Prakash Lachmands Daryanani, SPP, of Department of Justice, for the Respondent

Mr McGowan, James H.M, instructed by Jal. N. Karbhari & Co., for the Appellant