HKSAR v. Muhammad Waheed

HCMA 1179/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1179 OF 2004

(ON APPEAL FROM STCC 4122 of 2004)

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BETWEEN

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Coram: Deputy High Court Judge Wright in Court

Date of Hearing: 26 January 2005

Date of Judgment: 26 January 2005

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J U D G M E N T

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1.You pleaded guilty to two offences: unlawfully remaining in Hong Kong and making a false representation to an Immigration Officer.  You were sentenced to 15 months and four months imprisonment respectively.

2.You admitted the facts which revealed that you were smuggled into Hong Kong from the Mainland concealed in a suitcase.  This occurred in November 2002 after two previous attempts by you to enter Hong Kong had been prevented.  You remained in Hong Kong, unlawfully, until October 2004 when you were intercepted by the police.  You were interviewed by an Immigration Officer on that date and told him that you were not an illegal entrant but were an overstayer.

3.The sentence of 15 months imprisonment in respect of unlawfully remaining in Hong Kong is in accordance with sentencing guidelines.  [R v SO Man-king and Others [1989] 1 HKLR 142; HKSAR v Muhammed ARSHAD HCMA69/2001] You complain that another person with whom you are serving your sentence received a lesser sentence.  The fact that another person received a lower than usual or proper sentence does not justify imposing that sentence on another person.  Moreover, each matter is sentenced on its own facts. The period of four months imprisonment in respect of the second offence is, similarly, in accordance with sentencing practice.  The Magistrate was correct in ordering that the sentences be served concurrently with one another.

4.You have repeated your family circumstances to me.  Those were known to the Magistrate.  He took them into account in arriving at the sentences.  There is nothing in them that constitutes strong humanitarian grounds which would justify me departing the usual sentences in this matter.

5.You were correctly sentenced in respect of each offence.  I confirm the Magistrate’s sentence.  The appeal is dismissed.

Ms Anna Lai, SGC for DPP/HKSAR, for the Respondent

Appellant, Muhammad Waheed, in person