HKSAR v. Mithu Mohabub Zaman

HCMA846/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 846 OF 2007

(ON APPEAL FROM KCCC 1897 OF 2007)

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BETWEEN

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Before : Deputy High Court Judge Geiser in Court

Date of Hearing : 14 December 2007

Date of Judgment : 14 December 2007

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J U D G M E N T

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1.The Appellant was convicted on 13 August of this year, after trial, of an offence of remaining in Hong Kong without the authority of the Director of Immigration, after having landed here unlawfully contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115, Laws of Hong Kong.  He was sentenced to a term of 22 months’ imprisonment, 6 months of which was ordered to run consecutively to a term of 8 months’ imprisonment imposed earlier by a different magistrate in relation to an offence of theft.

2.As the sentence of 8 months’ imprisonment had only 12 days to run, the learned magistrate on 20 August of this year, on her own initiative, reviewed the sentence pursuant to section 104(5) of the Magistrates Ordinance, Cap. 227, Laws of Hong Kong, and reduced the sentence of 22 months to one of 16 months to run consecutively to the term of 8 months’ imprisonment.

3.By notice of appeal dated 21 August of 2007, the Appellant now appeals against the conviction on the Immigration offence and the sentence of 16 months’ imprisonment.

4.Regarding the conviction, the letter that the Appellant wrote on 21 August of 2007, and which he appears to have confirmed this morning, which accompanied his notice of appeal indicates that the conviction is flawed because he originally entered Hong Kong by rail via the Lo Wu entry point on his valid Bangladesh passport which he subsequently lost, but did not report it.  He therefore maintained that he entered Hong Kong quite lawfully.

5.The entire prosecution case was admitted by the Duty Lawyer acting on behalf of the Appellant.  The facts were admitted pursuant to section 65C of the Criminal Procedure Ordinance, Cap. 221, Laws of Hong Kong.  They were reduced into writing in the court below and marked as Exhibit P4.  I will summarise them here:

(a)	On 16 March 2007 at about 1930 hours, the defendant, that is, the Appellant, failed to produce any identification document for proof of his identity after being intercepted by a police officer in Cheung Sha Wan Road for an identity check.  The defendant was later taken back to Sham Shui Po Police Station for further inquiries;
(b)	On 17 March 2007 at 6.30 pm, a police officer, with the assistance of two qualified English/Bengali and English/Chinese interpreters, took a record of interview with the defendant at Sham Shui Po Police Station.  During the interview, the defendant provided his personal details including his name as Mahabub Jaman Mithu[?], his Bangladesh passport number as R0892607, and his date of birth as 2 April 1976;
(c)	In order to ascertain all the defendant’s movements in and out of Hong Kong, the Immigration Department used the name Mahabub Jaman Mithu, as given by the defendant, to check over all the arrival and departure records from 1 January 2004 to 17 March 2007, as a result of which no movement record was found with the name of Mahabub Jaman Mithu.  When the Immigration Department chose to use the passport number R0892607, as given by the defendant, some movement records were found with a similar name of Mithu Mohabub Zaman, whose date of birth was 15 February 1976.  The movement record was marked as Exhibit P3, in which it shows that the said Mithu Mohabub Zaman had arrived in Hong Kong through Lo Wu terminal on 23 December 2004 at 2202 hours and then departed from Hong Kong through Hong Kong International Airport on 24 December 2004 at 2218 hours.  Since then, there was no further movement in and out of Hong Kong in respect of the said Mithu Mohabub Zaman;
(d)	On 20 March 2007 at 1837 hours, a police officer, with the assistance of two qualified English/Bengali and English/Chinese interpreters, took a second record of interview (Exhibits P2 and P2A) with the defendant at Sham Shui Po Police Station.  During the interview, the defendant said that the Bangladesh passport bearing the number R0892607 belonged to him and the name Mithu Mohabub Zaman appearing thereon was also his name.  It was likely that he misspelt his name to the police officer on the last occasion.  The defendant further said that his date of birth was in 1976 but he was not sure which month it was; and then finally
(e)	The said two records of interview were made voluntarily by the defendant.

That was the case for the prosecution and that was the case that the Appellant agreed.

6.The Appellant elected to give evidence and said that he was the holder of Bangladesh passport number R0892607.  He said that he first came to Hong Kong on 16 December 2004 and was allowed to stay for four days.  He said that he departed on 20 December 2004.

7.He said that he next came to Hong Kong on 23 December 2004 with the same passport through Lo Wu.  When he woke up the following morning he could not find his passport.  He made no report to the police about the loss of his passport and he has been staying in Hong Kong ever since.

8.In her statement of findings, the learned magistrate accepted and found as a fact that the Appellant was the true owner of Bangladesh passport No. R0892607.  She also accepted the admitted facts as set out in Exhibit P4 as being the truth.  This is important because inbuilt into Exhibit P4 is Exhibit P3, which is the movement record of the Appellant’s passport showing, contrary to what the Appellant had said in evidence, that he left Hong Kong on 24 December 2004 and that there had been no movement since.

9.The learned magistrate was well aware that the Appellant was a man of hitherto good record and gave herself the appropriate warning with regard to credibility and propensity.

10.Despite this, the learned magistrate disbelieved the account given by the Appellant in the witness-box.  She was entitled to.  She had the benefit of seeing and hearing the Appellant herself.  Having regard to the whole of the evidence but particularly Exhibit P3, the movement record, the learned magistrate drew the inference which was the only possible inference that she could draw, that being that the appellant must have landed in Hong Kong unlawfully some time subsequent to 24 December 2004. 

11.There is no merit in this appeal against conviction and it is dismissed.

12.With regard to sentence the learned magistrate’s reasons for sentence cannot be faulted.  The guideline of 15 months’ imprisonment which was laid down in R v So Man King [1989] 1 HKLR 142 is to be imposed subject to strong humanitarian grounds on a guilty plea to the charge.  In the present case, the Appellant denied the charge.

13.The magistrate in the present case initially sentenced the Appellant to 22 months’ imprisonment, finding there to be no strong humanitarian reasons, but due to the question of totality ordered that 6 months be served concurrently with the sentence of 8 months’ imprisonment that the Appellant had received earlier with regard to the offence of theft.  Having discovered that there were only 12 days to run on the theft charge, the learned magistrate reviewed herself and changed the sentence of 22 months to one of 16 months to run consecutively to the remainder of the sentence on the theft charge.

14.This sentence cannot be said to be manifestly excessive or wrong in principle and accordingly the appeal again sentence is dismissed.

Representations:

Ms Winsome Chan, Senior Government Counsel of the Department of Justice, for the Respondent

Appellant, in person, present