HKSAR v. Abdul, Alim also known as (A.K.A.) Amir, Hossain M D, A.K.A. Khan, Fazlul Hoque, A.K.A. Ahmed, Md Jamal, A.K.A. Hossain Md Amir

HCMA 391/2025

[2026] HKCFI 2372

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 391 OF 2025

(ON APPEAL FROM STCC 3160/2025)

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J U D G M E N T

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1.The appellant pleaded guilty to one count of breach of deportation order[1]. He was sentenced to 22 months’ imprisonment.

2.The appellant now appeals against sentence.

Facts

3.The facts admitted by the appellant show that a deportation order for life was issued against the appellant on 27 February 1996. The said order was served on the appellant on 4 March 1996 and he was deported to Bangladesh on 15 March 1996.

4.On 12 January 1999, the appellant was arrested. He was subsequently charged with and convicted of the offence of breach of deportation order and other offences. After legal proceedings, he was deported to Bangladesh on 1 December 1999.

5.On 22 November 2006, the appellant was arrested. After legal proceedings, he was repatriated to Bangladesh on 26 January 2007.

6.On 25 August 2015, the appellant surrendered to the Immigration Department for having sneaked into Hong Kong. In a cautioned interview, the appellant admitted that he sneaked into Hong Kong on 24 August 2015 and he was aware that he was the subject of the deportation order.

Mitigation

7.It was submitted in mitigation that the appellant was aged 50, married with 2 children and his family members all lived in Bangladesh. He has 6 previous conviction records, one of which is for breach of deportation order. The strongest mitigation is his guilty plea.

Sentence

8.With reference to the Reasons for Sentence prepared by the presiding magistrate, the reasons for the sentence have been set out in paragraphs 8 to 15 therein.

9.In gist, it was said that there was no sentencing guideline for the offence of breach of deportation order. The maximum sentence on summary conviction is 3 years’ imprisonment. Having considered HKSAR v Nguyen Tuan Anh HCMA 1091/2003, HKSAR v Bui Van Khai CACC 175/2012 and HKSAR v Nguyen Thi Thuoc DCCC 143/2014, and taking into consideration it was the appellant’s second conviction for breach of deportation order, the magistrate adopted a starting point of 33 months’ imprisonment and reduced it to 22 months’ imprisonment for the guilty plea. The magistrate stated that there was no other valid mitigation justifying further reduction in sentence. He therefore sentenced the appellant to 22 months’ imprisonment.

Grounds of appeal

10.In the notice of appeal, the appellant relied on the general ground that his sentence was too severe. At the appeal hearing, the appellant stated that while he was in jail, his parents passed away and his wife had a stroke. He wished his sentence could be reduced.

Respondent’s submissions

11.The respondent referred to HKSAR v Joned Asri also known as Tri Wahyu CACC 345/ 2012 and submitted that the Court of Appeal had set out the sentencing principles for the offence of breach of deportation order. In that case, a starting point of 30 months’ imprisonment was adopted as the starting point for 2^nd and 3^rd breaches of deportation order. The respondent further submitted that the shorter the interval between the successive breaches, the more serious an aggravating factor it was. The respondent was of the view that the magistrate should expressly referred to the fact that the interval between the two breaches was 16 years.

12.The respondent fairly acknowledged that the appellant should be entitled to some discount for his voluntary surrender to the Immigration Department.

13.The respondent submitted that had the magistrate considered the interval between the breaches and voluntary surrender, he might have adopted a slightly lower starting point. Nevertheless, as there was no sentencing tariff for the offence, it was submitted that the magistrate was entitled to adopt 33 months’ imprisonment as the starting point. Therefore, it was submitted that the appeal should be dismissed.

Consideration

14.The Court of Final Appeal in HKSAR v Hui Lai Ki (許麗琪) (2024) 27 HKCFAR 265 held that magistracy appeal is conducted by way of rehearing on the evidence before the trial court, supplemented by such further evidence as the intermediate appellate court may admit within its statutory power. 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. On an appeal against sentence, the intermediate appellate court should consider all the facts, mitigation and relevant authorities.

15.As the respondent has rightly pointed out, the Court of Appeal has set out the sentencing principles regarding the offence of breach of deportation order in Joned Asri. The cases considered by the magistrate were all decided before Joned Asri. Thus, I am of the view that reference should be made to Joned Asri when deciding on the appropriate starting point of the offence. In Joned Asri, it was held that the appropriate starting point for a second breach was 30 months’ imprisonment. As the maximum sentence for the offence on summary conviction is 3 years’ imprisonment and given it is the appellant’s second conviction only and the interval between the two breaches is not short but 16 years, I find the starting point of 33 months adopted by the magistrate is on the high side.

16.It is well established that voluntary surrender is a valid mitigating factor. While the magistrate was aware of the fact that the appellant voluntarily surrendered himself when he set out the facts admitted by the appellant, it appears that he failed to take that into consideration in sentencing as he said there was “no other valid mitigation justifying further reduction in sentence” after he reduced the sentence for the appellant’s guilty plea[2].

17.On rehearing, having considered the facts of the case, the appellant’s mitigation, that it was the appellant’s second conviction of the offence and the case of Joned Asri, I consider the appropriate starting point is 30 months’ imprisonment. Given the appellant’s guilty plea, the sentence is reduced to 20 months’ imprisonment.

18.Regarding voluntary surrender, it is relevant as mitigation, and does not affect the starting point for sentence. Given the appellant voluntarily surrendered to the authority, he is entitled to a discount[3]. I consider the appropriate discount is 2 months’ imprisonment. Thus, the sentence is further reduced to 18 months’ imprisonment. Apart from this, there is no other valid mitigating factor justifying further reduction of sentence.

19.In view of the above, the appellant’s appeal against sentence is allowed. The sentence is reduced to 18 months’ imprisonment.

Mr Prakash Lachmandas DARYANANI, SPP, of Department of Justice, for the respondent

The appellant appeared in person