HKSAR v. Zulfiqar Ali

HCMA461/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.461 OF 2009

(ON APPEAL FROM TWCC 1046 OF 2009)

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Before : Deputy High Court Judge D. Pang in Court

Date of Hearing : 15 July 2009

Date of Judgment : 15 July 2009

Date of Reasons for Judgment : 22 July 2009

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REASONS  FOR  JUDGMENT

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1.The appellant was convicted on his own plea of one charge of ‘theft’ (Charge 1), one charge of ‘possession of Part I poison’ (Charge 2) and one charge of ‘remaining unlawfully’ (Charge 3) and was sentenced to the concurrent terms of 6 days, 6 days and 15 months’ imprisonment.  He appeals against both conviction and sentence. 

The facts

2.Very briefly, the simple facts of the case were that the appellant was stopped by the police and found to be in possession of (a) an Octopus card belonging to another (Charge 1) and (b) two packets of sildenafil and naproxen pills (Charge 2).  Under caution, he further admitted to have sneaked into Hong Kong by sea. 

This appeal

3.This is what the appellant had written down in his Notice of Appeal :

“I am an asylum seeker.  I came to Hong Kong for saving my life.  My life is in danger in Pakistan.  I need the support for saving my life.”

4.Before me, he said 15 months’ imprisonment was too long and that other people in the same situation had been given much shorter sentences. 

Determination

5.According to the documents provided by Government Counsel, the appellant did register himself with the UNHCR in Hong Kong in 2006.  In July 2007, however, his case was closed and as far as the UNHCR is concerned, the appellant is no longer a person of their concern.  That is the first point. 

6.Second, on my clarification, the appellant confirmed that he had, before the magistrate, pleaded guilty to the charges and agreed to the supporting facts.  There is therefore no question of a nullity as per the case of HKSAR v Wong Chi Yuk [2000] 3 HKLRD 125. 

7.Third, the prison terms of 6 days, 6 days and 15 months to be served concurrently are obviously neither wrong nor excessive. 

8.The appellant’s appeal is without merit.  It is dismissed. 

Miss Fung Mei Ki, Mickey, SPP of Department of Justice, for HKSAR

Appellant in person, present