HKSAR v. Mohamed Naseer Ahamed Fazloon

HCMA 827/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 827 OF 2010

(ON APPEAL FROM STCC 5225/2010)

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BETWEEN

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Before: Hon Mackintosh J in Court

Date of Hearing: 8 December 2010

Date of Judgment: 8 December 2010

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J U D G M E N T

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1.The appellant who was represented by counsel in the magistracy pleaded guilty to two charges:

(1)   Making false representation to an immigration officer, contrary to section 42(1)(a) of the Immigration Ordinance, Cap 115.  This was on 28 March 2005.

(2)   Unlawfully remaining in Hong Kong having landed unlawfully, contrary to section 38(1) of the Immigration Ordinance.  This was on 4 November 2007. 

2.He was sentenced to 8 months’ imprisonment on Charge 1 and 13 months’ imprisonment on Charge 2.  The terms were ordered to run concurrently as to 4 months though the magistrate did not identify which part of which sentence was consecutive as, with respect, he ought to have done as a matter of good sentencing practice.  Thus in the end the overall term was 17 months’ imprisonment and it is against that term that the appellant now appeals.

3.The appellant, a Sri Lankan national, on his own account, came to Hong Kong on 8 September 2000 under the name Mohamed Naseer born on 3 April 1976.  He used his Sri Lankan passport.  He then overstayed from 8 October 2000.  On 28 March 2005 he left Hong Kong using a different passport in a different name, with a different date of birth.  Although he was challenged as to his resemblance to the photograph in the passport, he was eventually allowed to depart.  He later claimed that he lost his original passport in the five years during which he had been overstaying and that he had obtained another through a middleman.  Thus he had falsely represented his identity to an immigration officer.

4.In Sri Lanka the appellant obtained another passport to enable him to leave Sri Lanka.  He did not use that to enter Hong Kong.  Instead he came here by boat via the Mainland and therefore entered Hong Kong without the authority of the Director of Immigration (Charge 2).  Having pleaded guilty to these two charges before the magistrate, he admitted the relevant facts. 

5.At some point the Immigration Department caught up with him.  At some point, it appears to be 2005, the appellant had filed an asylum claim with the UNHCR.  But that was rejected and the file was closed in 2008. 

6.The immigration authority in Hong Kong, when they did catch up with him, did not make the connection with that asylum claim.  But after he was located by the Immigration Department he was detained for about one month.  At that point he was identified as an illegal immigrant; but he had then made a claim under the Convention against torture and was placed on a recognizance by the Immigration Department.  The allegations of unlawfully remaining and making false representations to an immigration officer were in effect held in abeyance pending the resolution of that torture claim. That is in accordance with standard practice. 

7.The resolution of the torture claim came in April 2010, when it was withdrawn by the appellant in a letter to the Immigration Department.  The Immigration Department thereafter sought legal advice on the outstanding allegations and following the obtaining of that legal advice they laid the charges against the appellant on 30 September and in due course those charges were dealt with in the magistracy.

8.In the meantime, I might interpose to say, the Immigration Department had written to the Consulate of Sri Lanka in May 2010 seeking to facilitate the return of the appellant to Sri Lanka because that is what he wanted, the reason why he withdrew his torture claim.  The Immigration Department wanted the Consulate to verify the identity of the appellant and to issue him with a travel document.  But to date no reply has been received. 

9.The appellant originally said that he left Sri Lanka because the lives of members of his family were imperilled for political reasons.  He had made his torture claim to prevent his return to Sri Lanka. But his father who had been very ill had passed away and the appellant now wished to return to Ski Lanka to take care of his family.  Indeed he has emphasised that today in his submission, because he emphasises that he wishes to return to Sri Lanka as soon as possible in order to take care of his mother who is elderly and sick and his sister both of whom require his care and attention; and he complains that these allegations could have been brought more quickly; and if they had been brought more quickly then although he might have got a sentence of imprisonment in respect of them he would have finished that sentence by now and be able to return to Sri Lanka more quickly to achieve his objectives.

10.However, as I have pointed out, the Immigration Department has sought to verify his identity with the Sri Lankan Consulate but has not so far been able to do so with success.

11.Sentencing practice for the offence of making false representations to an immigration officer whether by name or date of birth or production of false or forged document is now well established.  As McMahon J said in a case called HKSAR v Pahila, [2007] 1 HKLRD 410, these are to be regarded as serious offences for which term of imprisonment starting at 18 months is appropriate.  Given the plea of guilty which justifies a reduction of one-third of the sentence, that term would have been reduced to 12 months’ imprisonment in this case.

12.The importance of accurately tracing those who pass through international boundaries has manifestly grown even since Pahila was decided in 2007.

13.Those who deceive immigration authorities by the use of false travel documents or false information must expect stiff sentences.  The appellant made false representations to conceal the fact that he had overstayed for five years in Hong Kong, an offence which would normally carry a sentence of some months’ imprisonment or more.

14.One of the consequences was that the Hong Kong immigration authorities did not know that he had left the territory when they caught him unlawfully remaining, after he came back; they had no basis to make the connection with the earlier entry and overstay. 

15.The sentence imposed on Charge 1 in this case, starting at 12 months before discount for plea of guilty, was markedly on the low side and the appellant could have had no complaints about a significantly longer term.

16.The usual sentence for unlawfully remaining, Charge 2, is 15 months’ imprisonment.  But the magistrate fairly gave credit for the period of detention in immigration custody which might not otherwise have been accounted for.  And he reduced the term from 15 months to 13 months.  He was generous in his consideration of the totality of sentence by overlapping the terms of imprisonment.  

17.In the end, the imprisonment imposed on this appellant for these offences were perfectly proper.  And there is no merit to his appeal. Accordingly I dismiss his appeal against sentence.

Miss Hermina Ng, Public Prosecutor, for the Respondent

The Appellant, in person