HKSAR v. Najam, Sheraz

HCMA 146/2025

[2025] HKCFI 4193

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 146 OF 2025

(ON APPEAL FROM STCC 180 OF 2025)

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J U D G M E N T

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1.The Appellant had pleaded guilty before the Magistrate for one count of “establishing or joining in any business 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. The Appellant was sentenced to 15 months’ imprisonment. The Appellant now appeals against sentence.

Prosecution Case

2.The Appellant was a holder of a recognizance form. At about 1225 hours on 2 January 2025, the Appellant was found parking a bicycle outside a restaurant called “Mu Taiwan Noodles”, situated in Shop Nos. 3 and 4, G/F, The Concord Building, No. 98‑100, Soy Street, Yau Ma Tei, Kowloon (“Restaurant”). The Appellant entered into the Restaurant and then came out with a bag of food. The bag was attached with a slip printed with the words “Deliveroo”, “Mu Taiwan Noodles”, and order number “0390”.

3.The Appellant was then intercepted by the immigration officers from the Immigration Department (“ImmD”). Investigation revealed that the food was ordered by Mr Ho with the Restaurant through delivery platform “Deliveroo”, with order number “0390”. A staff member of the restaurant confirmed that the Appellant went to the Restaurant and presented the order number “0390” on his phone. The Appellant then collected the bag of food for delivery.

4.Further investigation revealed that a removal order was issued against the Appellant, and the removal order against him remained enforced on the offence date.

Appellant’s Background and Mitigation

5.As briefly summarised by the Respondent, the Appellant had three previous convictions, none of them were the same as present offence. He asked the court to discount the period of his previous administrative and judicial detention and listed out the period of his previous administrative and judicial detention as follows: 

(1)  4 months (120 days) from 4 November 2004 to 4 March 2005;

(2)  40 days from 5 March 2005 to 13 April 2005;

(3)  290 days from 14 April 2005 to 6 February 2006;

(4)  almost 7 months (210 days), from October/November 2010 to June/July 2011;

(5)  142 days from 6 October 2012 to 1 March 2013; and

(6)  60 days from 2 January 2025 to 3 March 2025.

6.It is noted that 290 days detention from 14 April 2005 to 6 February 2006 was essentially the 317 days administrative detentions, while 142 days detention from 6 October 2012 to 1 March 2013 was essentially 147 administrative detention mentioned by the prosecution. And regarding the total of 160 days detention from 4 November 2004 to 13 April 2005, the Appellant elaborated that:

(1)  He was arrested on 4 November 2004 for being an illegal immigrant; 

(2)  He had since been detained in Lai Chi Kok Reception Centre for 120 days until 4 March 2005 when the trial took place;

(3)  He was acquitted on the “illegal immigrant” charge, but convicted on an “overstay” charge in respect of which he was sentenced to 2 months’ imprisonment on 4 March 2005;

(4)  His suspended sentence of 2 months was also activated and ordered to run consecutively with the 2 months’ imprisonment imposed on the “overstay” charge. Therefore, a total of 4 months’ imprisonment; and

(5)  He was only discharged from prison on 13 April 2005, despite he had already been detained for 120 days from 4 November 2004 to 4 March 2005.

7.Now, the Prosecution submitted the details and timelines of the defendant’s previous administrative detention as follows: 

Date	Incident	Administrative detention days
13/4/2005	Discharged from prison and transferred to ImmD after serving sentence of breaching condition of stay	317 days
23/2/2006	Released by ImmD on recognizance
9/6/2011	Discharged from prison and transferred to ImmD after serving sentence of resisting a police officer	44 days
22/7/2011	Released by ImmD on recognizance
6/10/2012	Arrested by police for failing to report recognizance since 30/3/2012 and transferred to ImmD for detention	147 days
1/3/2013	Released by ImmD on recognizance

So these three periods altogether, the administrative detention days comes to 508 days. However, the Prosecution will say that these 508 days were unrelated to the present offence, so it should not be taken into account for the purpose of sentencing the Appellant in the present case.

Magistrate’s Sentence

8.Firstly, the Magistrate considered that the 60 days detention from 2 January 2025 to 3 March 2025 was the period when the Appellant was arrested for the present offence until he was sentenced for this case. So the period of detention will be deducted by the Correctional Services Department (“CSD”) accordingly.

9.Secondly, for the remaining detention period mentioned by the Appellant, that took place more than a decade ago and they were not related to the present offence. These detention periods were not covered by section 67A of Criminal Procedure Ordinance (“CPO”). The Magistrate considered the case of HKSAR v Iqbal Zahid and Shahidul Islam Badhon HCMA 44/2018 and HKSAR v Asjad Baig HCMA 180/2022.

10.Thirdly, after considering the case of Asjad Baig as mentioned above, the Magistrate considered that the circumstances leading to the exercise of discretion are absent in the present case.

11.Fourthly, for the previous criminal conviction and sentence, CSD had already taken into account the relevant detention period.

12.Fifthly, the Magistrate did not see it unjust or unfair to refuse to exercise his discretion to discount his previous detention.

13.Sixthly, the Magistrate acknowledged that the usual sentence for this type of offence after guilty plea was 15 months’ imprisonment (see the case of HKSAR v Usman Butt and Another [2010] 5 HKLRD 452). So the Magistrate concluded that other than the Appellant’s guilty plea, there was no other valid mitigation factors for further reduction in the sentence. So the Appellant was sentenced to 15 months’ imprisonment accordingly.

14.And then on review hearing, the Appellant submitted that there was an offender surnamed “Latif” who was charged with the same offence as the Appellant, but was sentenced to 2 months’ imprisonment only. The Prosecution submitted that that person should be “SARKER. MD LATIFUL KHABIR”, but was charged with “breach of condition of stay” and was sentenced to 2 months’ imprisonment. But that was different offence charge, so there was no disparity in sentence. After review, the Magistrate also did not disturb the original sentence of 15 months’ imprisonment.

Grounds of Appeal

15.The Appellant acting in person submitted the written submissions to this Court concerning his grounds of appeal that the Respondent had briefly summarised as follow.

16.Firstly, concerning the matter of relationship with all the Appellant’s cases, the Prosecution used the Appellant’s record of previous convictions as fresh evidence in the present case which had influenced the judge’s mind, so the Magistrate refused his bail application and failed to give the Appellant some relief from his sentence. So this is ground 1.

17.On ground 2, on the deduction of custodial period, the Appellant requested to deduct the previous period of administrative and/or judicial detention because the Prosecution had used his criminal record in the present case. By analogy, the Appellant was also entitled to request for deduction of custodial period.

18.Ground 3, the 508 days administrative detention should be deducted in this case. The Appellant particularly mentioned a person called “BAPARI MD SHAHIN”, who was sentenced also to 15 months’ imprisonment, but his entire period of 150 days was altogether deducted.

19.Ground 4, there were different charges on the same offence were imposed on a person called “SARKER MD LATIFUL KHABIR”. Also, that person was arrested during food delivery. However, he was charged differently and was sentenced differently.

Respondent’s Submissions

20.On ground 2 and 3, the Respondent stated that section 67A of CPO governed the computation of sentences of imprisonment. While section 67A(1) concerned judicial detention, section 67A(1A) concerned administrative detention as follows: 

“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 proceedings relating to the offence for which the sentence of imprisonment were imposed in custody of the police, Customs and Excise Department or Independent Commission Against Corruption, or under Part VII of the Immigration Ordinance (Cap. 115) in connection with that offence.”

21.The Respondent said that according to that section 67A(1A) of CPO, a person’s sentence for an offence, a period of detention is only deductible from the sentence if that period of detention is immediately prior to his first appearance in any proceedings relating to that offence and that period of detention is in connection with that offence.

22.In the present case, the Magistrate had already correctly made the observation concerning the 60 days detention from 2 January 2025 to 3 March 2025. They were in relation to the present case, that will be deducted by CSD automatically. And for the other detention period mentioned by the Appellant, they were either administrative or judicial detention, but that took place more than a decade ago and were not related to the present offence. It is only a matter of whether the court should exercise its discretion to the same.

23.The Magistrate also mentioned the case of Asjad Baig. In that case, the court said that there is good reason for that:

“It is unattractive and contrary to public policy, to suggest that criminals can bank periods of time in custody for matters which are either not proceeded with or which result in an acquittal, against future offending as if they had an open cheque book to re-offend without risk of serving a sentence.”

So the Respondent will say there was no exceptional circumstances leading to the exercise of discretion. And also, according to the case of HKSAR v Iqbal Zahid [2018] 2 HKLRD 832, it was settled that a court had a discretion to give credit for time spent by a defendant in custody which would not otherwise be regarded. It is a discretion and not automatic.

24.For the present offence, the Magistrate had properly applied the case of Usman Butt in imposing 15 months’ imprisonment upon guilty plea. The Respondent submitted that the previous period of administrative or judicial detention would not be automatically reduced from the Appellant. The administrative detention of 508 days were not connected to the present case, so there was no deduction to be made and that there was no good reason to take into account the Appellant’s previous administrative detention in this purpose for this case, and that the final sentence of 15 months’ imprisonment was in no way manifestly excessive.

25.Concerning the case of HKSAR v Bapari Md Shahin HCMA 412/2024 as mentioned by the Appellant, that based on very unique circumstances and background which was totally different from the present case.

26.The Respondent replying to ground 1 of appeal, where the Appellant claimed that the Magistrate refused his bail application and failed to give the Appellant some relief from his sentence based on his previous criminal conviction. The Respondent will say that according to section 9G(2)(f) of CPO, the court should consider the previous criminal convictions for considering the bail application. There is nothing wrong for the Magistrate to consider that.

27.And on ground 4, concerned the person named SARKER, MD LATIFUL KHABIR, also involving in the food delivery business, the Respondent would say that case was fact-specific because that person was a visitor. However, the Appellant was the holder of a recognizance form and was subject to removal order, so two cases were not directly comparable.

28.According to the Court of Final Appeal case HKSAR v Hui Lai Ki [2024] HKCFA 7, that the court on rehearing, there was nothing wrong for the Magistrate to impose the 15 months’ imprisonment and to ignore the period administrative and/or judicial detention. In the circumstances, the appeal against sentence should be dismissed.

Consideration

29.In the Court of Final Appeal case HKSAR v Hui Lai Ki [2024] HKCFA 7, it was held that the Magistracy Appeal is conducted by way of rehearing on the evidence before the trial 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 appellant intervention to reverse the decision of the Magistrate. On appeal against sentence, this court also had to look at the relevant facts, mitigation, and relevant authorities for consideration.

30.Firstly, for the present charge of establishing or joining in any business while being a person in respect of whom a removal order is enforced, the Magistrate had correctly applied the authority of Usman Butt as stated above, where 15 months’ imprisonment shall be adopted upon guilty plea.

31.On ground 1 concerning that the Appellant’s previous criminal record had been used for refusal of his bail. That is clearly not a ground considering merits of sentence. Further, as section 9G(2)(f) of CPO provided, previous conviction could be considered for bail application. There is nothing unfair to the Appellant. This ground must fail.

32.On ground 2 and 3 concerning the computation of sentence of imprisonment, the Appellant emphasised that his previous detention up to 508 days as stated above shall be deducted from sentence. However, section 67A of CPO stated that for a period of detention to be deductible, it must be a period of detention immediately prior to his first appearance, in any proceedings relating to that offence and that which is in connection with that offence.

33.Now, as stated above, concerning that 508 days, not only was it only related to offence for a matter dated back 2013 or before, these were also clearly not related to the present offence. So the Magistrate was not wrong for ignoring those 508 days for sentence.

34.What remains was simply whether the court shall exercise discretion for that period to be deducted. The Magistrate had already considered the background circumstances of this case, and found that there was no unique nor unusual circumstances to exercise its discretion. Likewise, there were no good reasons for this court to disturb its finding. So these grounds of appeal also fail.

35.Lastly, the Appellant also referred to another person charged differently for the same type of offence and was sentenced much leniently. However, as stated by the Respondent that defendant was a visitor, while the Appellant was a holder of a recognizance form and subject to removal order. Thus the two cases were simply not comparable. Therefore, this ground also fail.

36.By way of rehearing, I also find that the Magistrate’s sentence was not manifestly excessive nor wrong in principle. So the sentence do stand, and the appeal of sentence shall be dismissed accordingly.

Ms Wong Hiu-mei Josie, PP of the Department of Justice, for the Respondent

The Appellant appeared in person