HKSAR v. Ali, Tahir

HCMA 697/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 697 OF 2010

(ON APPEAL FROM STCC 3174/2010)

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Before: Deputy High Court Judge E. Toh in Court

Date of Hearing: 8 October 2010

Date of Judgment: 8 October 2010

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J U D G M E N T

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1.The Appellant had pleaded guilty to one charge of remaining in Hong Kong without the authority of the Director of Immigration after landing unlawfully in Hong Kong. He was sentenced to 14 months’ imprisonment. He appealed against the sentence.

2.The Appellant had come to Hong Kong in 2003, but had been repatriated to Pakistan in August 2003.

3.On 24 May 2010, he sneaked into Hong Kong from Mainland China.  He surrendered himself to the Immigration Department on the same day and made a torture claim.  Shortly after that, he withdrew his torture application and the prosecution then charged him with the present offence.

4.The Appellant, is aged 33 and is single. According to the applicant, he had made the torture claim because he had a family trouble in Pakistan that was why he fled Pakistan.  He also explained why he came to Hong Kong and made a torture claim, as he had thought that his life would be in danger if he should be repatriated to Pakistan.

5.But due to his mother’s life threatening illness, the danger to him was settled between the parties.  The persons threatening him had agreed not to harm him any more because of his mother’s illness.  The matter had been settled that the Appellant would be allowed to return to Pakistan to see his mother, because she was seriously ill.

6.On 31 May 2010, the Appellant withdrew his torture claim and expressed his willingness to return to Pakistan.  He was then charged on 22 June with this present offence.  He was sentenced on 23 June to 14 months’ imprisonment.

7.He applied for a review on 7 July before the learned Magistrate.  The learned Magistrate wanted supporting document to satisfy him as to the fact of his mother’s illness.  So the application for a review of sentence on humanitarian ground was adjourned.

8.When the matter came before the learned Magistrate again on 11 August, the Appellant’s mother had already passed away. So the review application was dismissed.

9.The learned Magistrate in his reasons for sentence had admitted that he should have given more weight to the fact that the Appellant had surrendered to the authority once he arrived in Hong Kong.  I also see from the record of proceedings on page 14 of the appeal bundle that counsel representing the Appellant at the time, mentioned that the Appellant had provided an air ticket to the Immigration Department.  So this is an indication that the Appellant was willing to go home.  There is nothing wrong with the learned Magistrate’s sentence for this offence, because that is the normal type of sentence that is normally given for this type of offence.

10.Mr Brook fairly pointed out that, there is a strong humanitarian consideration here.  It is that, although the Appellant’s mother had passed away during the proceeding, it is natural that he would want to return home in any event to mourn his mother and that coupled with the fact that the Appellant is not the normal type of offenders for this type of offence, because the minute he arrived in Hong Kong he had surrendered himself to the Immigration Department.

11.All the Appellant’s actions do support the submission in mitigation that he was scared for his life and that was why he left Pakistan.  Because of his mother’s illness, the threat was no longer there and therefore he withdrew the torture claim.  Also the fact that he had surrendered an air ticket to the Immigration Department supported his mitigation that he wishes to go home.

12.So in view of these matters, the court is going to take the exceptional position of allowing the appeal in this case.  On the ground that the learned Magistrate had failed to take into account the fact that he had surrendered on the same day of his arrival in Hong Kong, and also on the humanitarian ground.  Therefore, the sentence of 14 months’ imprisonment is set aside.  The fact is the Appellant had served slightly over 5 months’ in custody now.  I order that he be released and returned to Pakistan.

Mr Edward J Brook, SPP of the Department of Justice, for the Respondent

The Appellant in person