HKSAR v. Ali, Babar
Read the full judgment text of HCMA 1110/2005 on BabelCite. This High Court CFI judgment was delivered on 14 December 2005 before Deputy High Court Judge Wright.
Criminal law – sentencing – employing a person not lawfully employable – appeal against sentence – application of sentencing guideline – guilty plea discount – whether sentence should be suspended – fresh material on appeal – sentence of seven weeks imprisonment suspended for 12 months – whether the magistrate applied the correct starting point of three months imprisonment under the sentencing guideline in Secretary for Justice v HO Mei-wa [2004] 3 HKLRD 270 – whether a one-third discount for guilty plea and previous clear record was appropriate under Secretary for Justice v LEE Cho-keung and Others CAAR2/2003 – whether further reduction was warranted because the appellant was deceived by the identity card shown by the employee – whether suspension of the custodial sentence was justified – the appeal court held that the magistrate was not originally justified in suspending the sentence, but new factual material placed before the appeal court justified suspension – appeal allowed to the extent that the sentence of seven weeks imprisonment is suspended for 12 months.
Legal issues: Whether the sentence should be suspended
Outcome: Appeal allowed to the extent that the sentence of seven weeks imprisonment is suspended for 12 months.
Cites 1 case
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HCMA 1110/2005 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO. 1110 OF 2005 (ON APPEAL FROM STCC 9480 of 2005) ____________ BETWEEN
____________ Before: Deputy High Court Judge Wright in Court Date of Hearing: 14 December 2005 Date of Judgment: 14 December 2005 _______________ J U D G M E N T _______________ 1.You pleaded guilty to a single charge of employing a person not lawfully employable. The magistrate took a starting point of three months imprisonment in accordance with the current sentencing guideline (Secretary for Justice v HO Mei-wa [2004] 3 HKLRD 270). He reduced that by one third, a discount which caters both for the plea and for the previous clear record (Secretary for Justice v LEE Cho-keung and Others CAAR2/2003). He reduced the resulting two-month sentence to one of seven weeks imprisonment seemingly because he accepted that you had been deceived by an identity card shown to you by the employee. 2.He considered whether he was justified in suspending that sentence, concluding correctly that he was not. However, I have now had the advantage of having placed before me factual material which was not available to the Magistrate. It is such as, in my judgment, to justify the suspension of the sentence. 3.The appeal is allowed to the extent that the sentence of seven weeks imprisonment is suspended for 12 months.
Ms Winnie Lam, G.C. of Department of Justice, for the Respondent Mr Mitchell-Heggs instructed by Messrs Jal N. Karbhari & Co., for the Appellant |
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