R. v. Jahangir Ahmed Mirza

HCMA000799/1994

IN THE HIGH COURT

1994, No. 799

Magistracy Appeal

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Coram: Hon Litton, JA in court sitting as an additional High Court Judge

Date of hearing: 28 September 1994

Date of judgment: 28 September 1994

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J U D G M E N T

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Litton, J.A.:

1. This is an appeal by Jahangir Ahmed Mirza against a sentence of imprisonment totaling nine months imposed by a magistrate Mr Geiser at the Fanling Magistracy on 4 July 1994. The appellant pleaded guilty to two charges: (a) possession of an identity card belonging to another person contrary to section 7A(1A) of the Registration of Persons Ordinance and (b) breach of a condition of stay contrary to section 41 of the Immigration Ordinance.

2. The facts briefly are these. The appellant, a Pakistan National, is 21 years of age. He entered Hong Kong lawfully in 1993 but his permit of stay expired on 26 April 1993. Thereafter his remaining in Hong Kong constituted an offence. When on a routine check made by the police in July this year he was stopped and searched. He produced an identity card which belonged to aconvicted upon nother person: hence the two charges for which he stood his own plea.

3. On charge A the magistrate imposed a sentence of six months' imprisonment and on charge B one of three months' imprisonment to be served consecutively to charge A making a total of nine months.

4. The sentence of six months' imprisonment on charge A appears to me to be right in principle. There was no evidence before the magistrate that this appellant was able to pay any substantial fine, so a fine could not have been regarded as a viable option. As to charge B, breach of the condition of stay, a fine was plainly a possible option but in the absence of evidence that the appellant was able to pay any substantial fine the magistrate might have thought he was left with no alternative but to impose a sentence of imprisonment.

5. However, the two offences can in a sense be said to be related. He overstayed in Hong Kong contrary to section 41 of the Immigration Ordinance and maintained his identity in this territory by the use of an identity card belonging to another. There is no prevalence of offences of this kind: That is to say, the courts are not flooded with illegal immigrants from Pakistan in the way the courts are flooded in relation to illegal immigrants from China. This is a case where the magistrate could well have considered imposing concurrent sentences: a factor which the magistrate appears not to have taken into account.

6. In my judgment this is a case where the magistrate could have properly imposed concurrent sentences and his failure to consider this course leaves it open to me to exercise my judgment afresh. There are, as often happens in these cases, a number of mitigating factors of a personal kind. The appellant's father is in poor health and likewise his mother; though young, he has family responsibilities.

7. In my judgment I can properly exercise leniency in this case and in setting aside the consecutive sentences order that the sentence of three months' imprisonment on charge B be served concurrently with the sentence of six months on charge A making therefore a total of six months' imprisonment. To this extent the appeal against sentence is allowed.

Representation:

Applicant in person

Mr Barry Moorfoot (Crown Prosecutor) for the Respondent