HKSAR v. Maidi Mehani

HCMA 118/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 118 OF 2012

(ON APPEAL FROM KCCC NO. 19 OF 2012)

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Before: Hon McWalters J in Court

Date of Hearing: 29 March 2012

Date of Judgment: 29 March 2012

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JUDGMENT

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1.The appellant was convicted on his own plea of theft and sentenced by the magistrate to 8 months imprisonment. He now appeals that sentence on the ground that it is too severe.

2.In support of his appeal he also asserted that he only pleaded guilty because he was informed by a police officer that should he do so he would only pay a fine and would be allowed then to leave Hong Kong and return to his own country.

3.However I noted from the transcript of the lower court proceedings that the appellant was represented by a lawyer from the duty lawyer service and also had the benefit of an Arabic interpreter.

4.Nothing in what the appellant has now placed before me persuades me that he was not aware of what was taking place in the Magistracy or that his plea of guilty was not a voluntary one.

5.I accept that the appellant is remorseful and very sad at his predicament of having to serve a period of imprisonment whilst abroad and away from his family.

6.In sentencing this appellant the magistrate started at 12 months imprisonment in accordance with the judgment of the Court of Appeal in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1.  This decision applies to that form of theft which is in the nature of pick-pocketing and that was the nature of the conduct underlying the theft offence to which this appellant pleaded guilty.

7.Effectively all the matters upon which the appellant relies in court today are matters which go to seeking some mercy from the court so that he can return more quickly to his family.  I can understand that serving a sentence of imprisonment for a foreigner in a foreign jurisdiction is particularly harsh as he has to do so away from his family and away from any contact with persons from his own country.

8.Nevertheless these are consequences which every foreigner who commits an offence in Hong Kong has to face.  There is no error in the reasoning of the magistrate in the starting point that she adopted or in the final sentence of 8 months which she imposed on this appellant.  There is nothing in what the appellant has said to me today which would  entitle me to reduce that sentence.  The conduct to which this appellant pleaded guilty, namely conduct of a foreigner coming to Hong Kong and breaking its law by trying to pick-pocket from a resident of Hong Kong, is regarded as very serious conduct indeed.

9.The sentence imposed upon the appellant is appropriate and his appeal against sentence is dismissed.

Miss Hermina Ng SPP (Ag), of Department of Justice, for the respondent

Mr Maidi Mehani, the applicant in person