HKSAR v. Javed Zakir

HCMA650/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 650 OF 2011

(ON APPEAL FROM STCC NO. 2229 OF 2011)

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BETWEEN

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Before : Hon Saw J in Court

Date of Hearing : 28 March 2012

Date of Judgment : 28 March 2012

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JUDGMENT

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1.On 7 August 2011 the appellant was convicted after a trial before Mr Cheang Kei Hong Magistrate, of taking employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully, an offence contrary to section 38AA(1)(a) and 38AA(2) of the Immigration Ordinance Cap. 115. He was sentenced to be imprisoned for 22 months and 2 weeks.

2.Originally he appealed that conviction, however on 1 December 2011 before Deputy High Court Judge Albert Wong he applied to abandon that appeal and for leave to appeal sentence out of time.

3.The judge granted both applications and dismissed his appeal against conviction.

4.This is his appeal against sentence out of time.

5.It was the prosecution’s case in the lower court that the appellant was the 2^nd of 3 defendants in case no. STCC2229/2011, and each was charged with the same offence.

6.The appellant is a Pakistani national.

7.The appellant and his co-accused were illegal entrants to Hong Kong.  They were not permitted to take up employment paid or unpaid.  On 7 May 2011 at about 10:30 am police officers were in the vicinity of a used clothing recycling site in Tin Shui Wai.  Those officers gave evidence that the appellant and his co-accused were employed on the site sorting piles of used clothing.

8.The appellant together with his co-accused was arrested and charged.

9.In the trial he was represented and gave evidence denying that he was employed on the site.  The magistrate accepted the evidence of the police officers, rejected the evidence of the appellant and convicted him.

10.The appellant was sentenced to be imprisoned for 22 months and 2 weeks.

11.In his home made grounds of appeal the appellant has said inter alia :

(1)          he wants his term of imprisonment to be reduced to 18 months because he has a friend who was sentenced to such a term for the same offence; and

(2)          he wants to be released earlier so that he can be with his family as soon as possible.

12.In this court he has said that he now wishes to leave Hong Kong with his family and return to Pakistan.

The reasons for sentence

13.The magistrate considered the matters advanced in mitigation on behalf of the appellant and referred to the guidelines for sentencing.

14.The magistrate said :

“6. In HKSAR v Usman Butt and others, the Court of Appeal was of the view that a sentence of 15 months’ imprisonment applied to offences under both sections 38AA(1)(a) and 38AA(1)(b) of the Immigration Ordinance, and that the 15-month guideline already allowed for plea.

7. D2 was convicted after trial of the offence under sections 38AA(1)(a) and 38AA(2) of the Immigration Ordinance.  Applying the guideline set out in HKSAR v Usman Butt and others, I considered a starting point of 22 months and 2 weeks’ imprisonment appropriate.  There being no valid mitigation factors justifying reduction in sentence, I therefore imposed a sentence of 22 months and 2 weeks’ imprisonment on D2.”

15.The magistrate applied those guidelines and he was not in error in doing so.

16.Nothing advanced by the appellant today before me would justify any departure from the guidelines.

17.The appeal is dismissed.

Mr Andrew Cheng, SPP(Ag) of the Department of Justice, for the Respondent

The appellant in person, present