HKSAR v. Sauj Mondol

HCMA 762/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 762 OF 2011

(ON APPEAL FROM STCC 3696/2011)

------------------------

BETWEEN

------------------------

Before: Deputy High Court Judge A. Wong in Court

Date of Hearing: 27 January 2012

Date of Judgment: 9 February 2012

------------------------

JUDGMENT

------------------------

1.The Appellant was charged with one charge of taking employment while being a person in respect of whom a removal order is in force, contrary to sections 38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap. 115. He appeared before a Magistrate in the Shatin Magistrates’ Court and pleaded not guilty. After trial, the Magistrate found him guilty and sentenced him to an imprisonment term of 18 months and 2 weeks. He now appeals against the sentence imposed on him.

Facts of the case

2.The Reasons for Sentence prepared by the Magistrate is brief.  It can be seen from the Admitted Facts (exhibit P7) that in June 2006 the Appellant entered Hong Kong illegally from the mainland and then remained in Hong Kong without the authority of the Director of Immigration.  He was arrested in August 2007 by the Police.  On 10 October 2007, a removal order was issued against him.  The order was served on the Appellant and such order is still in force.  On 7 September 2007, the Appellant was released on recognizance by the Immigration Department. On 8 August 2011, the Appellant was intercepted by a police officer during an operation conducted at an unnamed recycling yard in Tin Shui Wai.  It is obvious from the conviction that the Magistrate found it proved that the Appellant was taking employment at the material time.

The sentence

3.In sentencing, the Magistrate noted that the Appellant was a person 26 years of age coming from Bangladesh and with a clear record.  He was a Torture Claimant.

4.The Magistrate followed the case of HKSAR v Usman Butt & Another HCMA 70 of 2010 in which it was held that an imprisonment term of 15 months is appropriate in a case of conviction upon guilty plea.  The Magistrate gave a discount of 4 months taking into account the 119 days the Appellant had spent in administrative detention.

5.On this basis, he imposed upon the Appellant an imprisonment term of 18 months & 2 weeks.

Grounds of Appeal

6.At the appeal hearing, the Appellant appeared in person.  The sole ground of appeal is that the sentence is too severe.

7.He also drew to my attention that one of the co-defendants, Khan Sarfaraz (D4 in the trial) had been sentenced to 22 months’ imprisonment.

Consideration

8.The Magistrate mentioned in his Reasons for Sentence that the offence was Taking employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed unlawfully.  It is obvious that it was a slip and he had the accurate offence in mind when he considered the sentence. 

9.The Magistrate found it appropriate to follow the Court of Appeal decision in HKSAR v Usman Butt & Another HCMA 70/2010.

10.In all the circumstances of the case, I do not see there are in existence any grounds which justify a departure from the sentencing consideration of the abovesaid case.  I agree entirely with the Magistrate that if the Appellant had pleaded guilty, a sentence of 15 months’ imprisonment would have been appropriate.

11.It is also obvious that the Magistrate had adopted a starting point of 22.5 months.  It is consistent with the sentencing consideration set out in the abovesaid case.

12.The Magistrate had fairly and appropriately made the deduction on the basis that the 119 days which the Appellant spent in administrative detention would not be taken into account when the Correctional Services Department is to determine the length of custody pursuant to the present sentence.

13.I cannot see how the sentence imposed on the other defendant can affect the present appeal.

14.In all the circumstances, I see no sufficient grounds to interfere with the sentence.  In my judgment, it is neither wrong in principle nor manifestly excessive.

Conclusion

15.The appeal against sentence is dismissed.  The original sentence stands.

Mr Frederick Chung, SPP of Department of Justice, for the Respondent

The Appellant in person