HKSAR v. Wasim Ashraf

HCMA244/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 244OF 2010

(ON APPEAL FROM STCC 504OF 2010)

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BETWEEN

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Before : Hon Lunn J in Court

Date of Hearing : 25 June 2010

Date of Judgment: 25 June 2010

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J U D G M E N T

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1.There is before the court an application pursuant to section 118(1)(d) of the Magistrates Ordinance that this court refer the appeal against sentence of this appellant to the Court of Appeal for its determination. The application is supported by the respondent.

2.On 20 May 2010, theappellantappeared in person before this court.  This court granted him legal aid and ordered that his appeal be listed for hearing within three months. Also, it was ordered that if there was to be an application for the reference by this court to the Court of Appeal that application be made in writing as soon as possible.  That has been done.

3.On 4 March 2010, the appellant was convicted on his own pleas of guilty to an offence of taking employment whilst being a person in respect of whom a removal order was in force, contrary to section 38AA(1)(b) of the Immigration Ordinance, Cap. 115 and an offence of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance.  The first offence was committed on 21 January 2010 and the second offence on 25 April 2007.  The magistrate sentenced the appellant to 10 months’ imprisonment on the first charge and 15 months’imprisonment on the second charge.  He ordered that three months of the sentence imposed on the first charge to run consecutively to that imposed on the second charge, making a total sentence of 18 months’imprisonment. On 12 March 2010 on the appellant’s application for a review of sentence, the magistrate increased the sentenceimposedon charge 1 to 15 months’ imprisonment.  However, the totality of sentence remained the same, namely 18 months’imprisonment.

4.By his perfected grounds of appeal the appellant argues, inter alia, that the magistrate erred in adopting the sentencing tariff laid down by the Court of Appeal in R v So Man King [1989] 1 HKLR 142 as the basis to impose sentence in respect of the first offence.  The first offence is a new offence having come into existence on 14 November 2009.  It is contended that the sentence of 15 months’ imprisonment imposed in respect of that offence is out of line with sentences passed by other magistrates for the same offence. It is submitted that guidance is required from the Court of Appeal to assist the lower court in their approach to sentence in respect of this new offence.

5.The court has been informed that Wright Jhas referred three other magisterial appeals involving section 38AA of the Immigration Ordinance to the Court of Appeal.  In HCMA379/2010, the appellant was sentenced to 6 months’imprisonment for an offence contrary to section 38AA(1)(b), common namelytheoffence for which the appellant has been charged in charge 1.  Those three appeals, the court is told, are to be heard on 12 October 2010.

Decision

6.I am satisfied that it is appropriate, and I so order that this appeal is referred to the Court of Appeal, pursuant to section 118(1)(d) of the Immigration Ordinance and I invite those charged with listing this case to consider listing it together with the other appeals on 12 October 2010.

Mr Andrew Cheng, PP of the Department of Justice, for the Respondent

Mr Jonathan Action-Bond, instructed by Messrs Krishnan & Tsang, for the Appellant