HKSAR v. Muhammad Shafiq

HCMA 519/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 519 OF 2009

(ON APPEAL FROM KTCC 3641 OF 2009)

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BETWEEN

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Before: Deputy High Court Judge Geiser in Court

Date of Hearing:  6 August 2009

Date of Judgment: 6 August 2009

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J U D G M E N T

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1.The Appellant appeared before the Acting Principal Magistrate sitting at Kwun Tong Magistracy on 9 June 2009 and pleaded guilty to a single charge 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 12 months’ imprisonment.

2.By notice of appeal filed by the Appellant on 11 June 2009, the Appellant appeals against the sentence imposed on the grounds that it was too severe.

3.In support of his appeal before me today, the Appellant repeats that he wishes the sentence to be reduced. He mentions that he has small children and appears to be keen to be reunited with them as soon as possible.

4.In her Statement of Findings, the learned Magistrate referred to the case of R v So Man King [1989] 1 HKLR 142 which set down a guideline of 15 months’ imprisonment for this offence on a plea of guilty. She declined to follow this guideline to the letter, expressing the view that it is somewhat outdated in the present era as Hong Kong no longer experiences the huge influx of illegal immigrants from China as it used to when the guidelines were brought in some 20 years ago. She therefore imposed a lesser sentence of 12 months’ imprisonment.

5.In my view, the Appellant was extremely fortunate not to receive the standard 15 months’ sentence. There are no strong humanitarian reasons or other circumstances which would warrant any further reduction of sentence. There is no merit to this appeal. I confirm the sentence and dismiss the appeal.

The Appellant, in person

Mr Nicholas Wong, PP of Department of Justice, for the Respondent