HKSAR v. Bapari Md Shahin

HCMA 412/2024

[2025] HKCFI 1448

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 412 OF 2024

(ON APPEAL FROM STCC 2118 OF 2017)

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JUDGMENT

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1.The Appellant pleaded guilty before the Magistrate for 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. The Appellant was sentenced to 15 months less 38 days’ imprisonment. The Appellant now appeals against the sentence.

Prosecution’s Case

2.The Appellant was arrested by the police for illegally remaining in Hong Kong on 17 July 2014. He was released on recognizance after being detained for 38 days. While being on recognizance, the Appellant was arrested by the police for another offence on 1 April 2016. He was released on recognizance after being detained for 112 days. The Appellant was found remaining in Hong Kong without the authority of the Director of Immigration until he was arrested by the police on 1 April 2016.

Mitigation

3.The Appellant had a clear record. Since he had been detained for altogether 150 days prior to the conviction of the current case, the Appellant asked the Magistrate to deduct the entire period from the sentence to be imposed on him. He further submitted that his younger brother was severely injured from a gunshot, hence he wanted to go back to Bangladesh to help his family as soon as possible.

Magistrate’s Reasons for Sentence

4.The Magistrate relied on the Court of Appeal case in R v So Man King and others [1989] 1 HKLR 142, and ordered that 15 months’ imprisonment is to be imposed on the Appellant after his guilty plea.

5.Further, pursuant to subsection (1A) of s.67A of the Criminal Procedure Ordinance, Cap 221, the Magistrate held that, according to the facts admitted by the Appellant, the total of 150 days he had spent in custody comprised 2 periods of administrative detention, that is, the first one lasted for 38 days, whereas the second one lasted for 112 days.

6.But neither of these 2 periods occurred immediately prior to the Appellant’s first appearance in court, thus the Magistrate found that they were not covered by s.67A of Cap. 221 and credit would not be automatically given for the time spent by the Appellant in custody for these 2 periods. s.67A for the computation of sentences of imprisonment stipulated as follows:

“(1A) The length of any sentence of imprisonment imposed on a person by a court shall also be treated as reduced by any period during which he was, immediately prior to his first appearance in court in connection with any proceeding relating to the offence for which the sentence of imprisonment was imposed, in custody—

(a) of the police, Customs and Excise Department or Independent Commission Against Corruption in connection with that offence; or

(b) under Part VII of the Immigration Ordinance (Cap. 115) in connection with that offence.”

7.The Magistrate considered that according to the provision that the time spent in detention, even if it is to be discounted, has to be related to the offence for which the Appellant was facing. The Magistrate therefore found that only the first period of 38 days occurred prior to the date of the present offence and was in connection with the present offence, whereas the second period of 112 days occurred after the date of the present offence and was in relation to another offence.

8.When exercising his discretion, the Magistrate only gave credit to the Appellant for the first period of 38 days served in custody and he sentenced the Appellant to 15 months less 38 days imprisonment in the end.

Grounds of Appeal

9.Other than repeating the mitigation as submitted before the Magistrate, the Appellant further stated that he needs to go back to Bangladesh to sell his property in order to raise funds for his parents’ medical needs. He requested to get back to Bangladesh as soon as possible.

Respondent’s Reply

10.The Respondent now provides further details for court’s consideration. The Appellant was arrested by the police for illegally remaining in Hong Kong and detained on 17 July 2014. He was then transferred to the Immigration Department for detention on 19 July 2014, and was released on recognizance on 23 August 2014, hence a total of 38 days for the said period.

11.The Appellant was then arrested by the police for the offence of “trafficking in a dangerous drug” on 1 April 2016. He was sentenced to 12 months’ imprisonment on 28 July 2016 and was discharged from prison on 14 March 2017. Thereafter, he was immediately transferred to the Immigration Department for detention due to the present case.

12.On 7 June 2017, the Appellant had his first appearance at the Magistrates’ Courts. Hence, between 14 March 2017 and 7 June 2017, the Appellant was already detained for 86 days. After the first appearance, the Appellant was further detained by the Immigration Department from 7 June 2017 to 3 July 2017, that is, another 26 days before he was then released on recognizance. The Appellant absconded from a hearing on 23 May 2022 and eventually surrendered himself to the Magistrates’ Court and pleaded guilty to the present offence on 19 September 2024. The Magistrate therefore convicted him as charged.

13.The Respondent now clarifies that the entire period during which the Appellant was detained by the Immigration Department was in fact related to the present offence, although within which only 86 days were served by the Appellant prior to his first appearance, whereas the following 26 days took place henceforth. However, for those 86 days, the Appellant was detained under Part VIIC of the Immigration Ordinance, Cap 115.

14.The Respondent had been making several inquiries with the Immigration Department prior to the first written submissions filed to this court. The Respondent only found out on the date of hearing from the OC case that the details of chronology of events stated above were seemingly not able to be offered during the proceedings for the Magistrate to consider, and it was most unfortunate that it was wrongly stated on the charge sheet that the Appellant was not detained prior to his first appearance in court. Hence, the Magistrate was unable to exercise his discretion with all the relevant facts of the case.

15.So, in all the circumstances, the Respondent submitted that given the first period of 38 days were already taken into account by the Magistrate when sentencing, this court may exercise its discretion to consider whether the entire period of 112 days should also be discounted from the total sentence imposed on the Appellant. See the case of HKSAR v Iqbal, Zahid and Another [2018] 2 HKLRD 832.

Consideration

16.In the Court of Final Appeal case, HKSAR v Hui Lai Ki [2024] HKCFA 7, it is stated that the Magistracy Appeal is conducted by way of rehearing on the evidence before the court. On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies appellate intervention to reverse the decision of the Magistrate.

17.Now, for sentencing appeal, the court has to consider all the Admitted Facts, the mitigation and the relevant authorities. On the charge, the Magistrate had properly applied the Court of Appeal case of So Man King to impose 15 months’ imprisonment after guilty plea.

18.Further, on considering the period of detention, s.67A of the Criminal Procedure Ordinance already stipulated that it has to be immediately prior to his first appearance in Court and in relation to the offence where imprisonment was imposed for any deduction of sentence.

19.Upon clarification, the Respondent now submits that for the second period of 112 days, in fact, there were 86 days served by the Appellant prior to his appearance where the said period of administrative detention may also be reduced on discretionary basis as it was also in connection with the offence for imprisonment imposed. It was only most unfortunate that the above facts had not been provided to the Magistrate before sentence. Therefore, it remains for this court to consider whether the remaining 112 days served by the Appellant should also be deducted.

20.Now, considering all the circumstances, particularly the case I stated above, Iqbal, Zahid, on the very unique circumstances of this case, I also consider it is appropriate for the facts presented that I should deduct the entire 112 days for the sentencing purpose.

21.Therefore, the appeal of sentence should be allowed. The sentence shall be 15 months’ imprisonment less the entire period of 150 days accordingly.

The appellant appeared in person

Ms Mo Kwok-ping Alison PP, of the Department of Justice, for the respondent