HKSAR v. Ghazanfar Mahmood

HCMA661/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.661 OF 2005

(ON APPEAL FROM STCC7935 OF 2005)

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BETWEEN

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Before : Hon Tong J in Court

Date of Hearing : 26 July 2005

Date of Judgment : 26 July 2005

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JUDGMENT

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1.The appellant was charged with an offence of Breach of Condition of Stay (Overstay).  The particulars alleged that when the appellant arrived in Hong Kong on 25 June 2001, he was permitted to stay in Hong Kong until 14 December 2001, but he was found to be still in Hong Kong on 17 June 2005.  The appellant pleaded guilty and admitted the facts.  He was sentenced to two months’ imprisonment by the magistrate.

2.The appellant filed a notice of appeal against conviction.

3.The admitted facts disclosed a case that the appellant was arrested on 17 June 2005 by the police for the above offence.  Further enquiries revealed that the appellant came here on 25 June 2001 and was permitted to remain as a visitor until 12 December 2001.  He had applied for an extension of stay on 13 December 2001 but the Immigration Department refused the application.  The appellant was therefore required to leave Hong Kong on or before 15 December 2001.  However, the appellant did not leave as required and had since overstayed for 3 years and 6 months.

4.As the learned magistrate had stated in his Reasons for Decision, the conviction was based on the appellant’s guilty plea and admission of facts, and such facts clearly supported the conviction.

5.Regarding the sentence imposed, the magistrate had rightly pointed out that there was no tariff for this type of offence.  After analysing a number of relevant authorities, and having considered the length of the overstay, the magistrate decided to adopt a starting point of three months’ imprisonment and reduced it to two months to reflect the plea.

6.In his oral submission, the appellant emphasized that he did not come to Hong Kong to work or commit crimes, he came to save his life.  He said that if he were to be sent back to his country, he would be killed.  He further stated that the time he had spent here in Hong Kong would be more than sufficient punishment.  He asked this court to free him.

7.The appellant had entered an unequivocal plea of guilty before the magistrate and was properly convicted of the offence.  The appellant’s submission did not reveal any ground to justify a reconsideration of the conviction.  He would not be entitled to pursue an appeal against the conviction in the circumstances.  (See HKSAR v. Wong Chi Yuk [2000] 2 HKC 158.)  Leaving aside the issue of conviction, the sentence of two months could not be criticized either.  It was not wrong in principle or manifestly excessive.  

8.Hence the appeal, be it against the conviction or sentence, must be dismissed.  For the appellant’s wish to stay in Hong Kong due to alleged reasons of personal safety, that would not be a matter for this court to decide. 

Mr Alain Kwok, SGC of the Department of Justice, for HKSAR

Appellant in person