HKSAR v. Attaullah, Khan and Another

HCMA609/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 609 OF 2009

(ON APPEAL FROM NO. KCCC 3301 OF 2009)

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BETWEEN

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Before: The Honourable Madam Justice Beeson

Date of Hearing:  30 September 2009

Date of Judgment:  30 September 2009

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J U D G M E N T

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1.This Appellant pleaded guilty in the Magistracy to one count of Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong contrary to s. 38 (1) (b) of the Immigration Ordinance Cap. 115 . He was sentenced to 15 months’ imprisonment and appealed against that sentence on the grounds that it was too severe.

2.The brief facts, which were admitted by the Appellant, show that he was stopped by a patrolling police officer in June of 2009. He was questioned and cautioned and admitted that he was an illegal immigrant holding a Pakistani identity document, that he had sneaked into Hong Kong from the mainland, and that this was the second time he had come to Hong Kong.

3.In mitigation the magistrate was told that the Appellant was aged 34, had been educated to high school level and was residing with his family in Pakistan. He was unemployed at the time of his arrest. He had one previous conviction in 2001 when he was convicted of breach of condition of stay and was sentenced at that time to 2 months’ imprisonment, suspended for 2 years. The magistrate considered that the only mitigating factor was the guilty plea entered by the Appellant and sentenced him to 15 months’ imprisonment. There were no exceptional humanitarian reasons which the Magistrate considered would justify any lesser sentence.

4.In his grounds of appeal, apart from complaining that the sentence was too severe, the Appellant said he wished to say that his life was in danger in Pakistan, which was why he had entered Hong Kong illegally on this occasion. He claimed he did not know about Hong Kong law. Today he confirmed that he had had a fight in Pakistan and said people wanted to kill him. There was some political dispute involved, so he fled. Those matters do not appear to have been advanced either to the police officer on arrest or to the magistrate and must be viewed with scepticism. In light of his previous conviction it is highly unlikely that the Appellant was unaware of Hong Kong law as it affects illegal immigrants.

5.There are no grounds to justify my interfering with the entirely proper sentence which was imposed by the magistrate. This appeal against sentence is dismissed.

Mr David Leung, SADPP (Ag.) of the Department of Justice, for the Respondent

Appellant, in person