HKSAR v. A. R. Rahman

HCMA573/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 573 OF 2011

(ON APPEAL FROM KCCC 2195 OF 2011)

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Before : Hon M. Poon J in Court

Date of Hearing : 22 September 2011

Date of Judgment : 22 September 2011

Date of Handing Down Reasons for Judgment : 26 September 2011

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REASONS FOR JUDGMENT

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1.The appellant pleaded guilty one count of possession for sale or for any purpose of trade or manufacture goods to which a forged trade mark was applied, contrary to Section 9(2) as read with Section 18(1) of the Trade Descriptions Ordinance, Cap. 362, and one count of taking employment whilst being a person in respect of whom a deportation order is in force, contrary to Sections 38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap. 115. He was sentenced him to 2 months and 15 months’ imprisonment on the two charges to run concurrently. He now appeals these sentences.

2.During an anti-counterfeiting operation, a Chief Inspector of police disguised as tourist, was approached by the appellant, who said to him “Copy watches”.  PW1 was then led to a nearby flat and the after he chose two watches from photographs shown, he was led by the appellant to a tailor shop.  Afterwards, two males arrived one after the other with the two watches and left.  Later on PW1 called for reinforcements, revealed his police identity and arrested the appellant.  Checks with the Immigration Department revealed that the appellant was a returned deportee and holder of recognizance paper (Form 8) since 27 May 2009.  A deportation order had been made against the appellant on 31 March 2006, for which he was deported to Dhaka.  The appellant returned to Hong Kong under another identity in 2007, was convicted of Illegal remaining and false representation to an Immigration Officer in March 2009, served a 15 months’ imprisonment, released and had been on recognizance since May 2009. 

Grounds of appeal

3.The appellant submitted that his mother had been ill and bedridden for the past 3 years, and therefore he committed the present offences in order to afford medical expenses for her.  He asked this court to reduce his sentence so that he could return to his country as soon as possible. 

Respondent’s reply

4.It was submitted that no matters raised on appeal showed that the sentence was either wrong in principle or manifestly excessive, nor were there personal matters pertaining to the appellant which would justify a departure from the guideline sentences laid down in the authorities. 

My judgment

5.The appellant had 5 previous convictions in two court appearances, including a similar conviction to charge (1) in 2005 when he was sentenced to 6 months’ imprisonment.  

6.In my view, the learned magistrate has correctly referred herself to the case of HKSAR v. Lau Wing, HCMA934/1997, Secretary for Justice v. Lam Chi Wah, CAAR4/99, and HKSAR v. Lau Wai-kin [1992] 1 HKCLR 10.  With the facts and circumstances of the present case, an immediate custodial sentence in respect of the first charge was not wrong in principle, and a three months starting point is not manifestly excessive.  

7.The Court of Appeal in HKSAR v. Usman Butt & another [2010] 5 HKLRD 452 reviewed the authorities and laid down the guideline sentence of 15 months’ imprisonment upon a plea of guilty in relation to Section 38AA offences.  

8.The sentences imposed by the learned magistrate were neither wrong in principle nor manifestly excessive.  Indeed she has taken into account the totality principle and ordered the sentences be served concurrently.  

9.What was advanced by the appellant does not constitute humanitarian grounds for me to tamper justice with mercy.  This appeal is dismissed and I affirm the sentences imposed. 

Mr Hayson Tse, ADPP of the Department of Justice, for HKSAR

The Appellant in person, present