HKSAR v. Zakir Hossain

HCMA176/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 176 OF 2012

(ON APPEAL FROM STCC NO. 1005 OF 2012)

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BETWEEN

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Before : Hon Saw J in Court

Date of Hearing : 27 April 2012

Dates of Judgment : 27 April and 11 May 2012

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JUDGMENT

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1.On 25 February 2012 the appellant pleaded guilty to a charge of taking employment while being a person in respect of whom a removal order is in force, an offence contrary to section 38AA(1)(b) and 38AA(2) of the Immigration Ordinance Cap. 115.

2.He was sentenced to be imprisoned for 407 days.

3.The magistrate arrived at that sentence by adopting a starting point of 15 months and then deducting from that the period of administrative detention from 3 October 2011 to 14 November 2011 — namely 43 days.

4.This is his appeal against that sentence.

The Facts

5.The charge arose in the following way :

(1) On 22 February 2012 the appellant was observed by police officers to be engaged in cleaning work at room 508 Block A, I-Feng Mansion No. 237, To Kwa Wan Road, Hung Hom, Kowloon.

(2) He was approached and ultimately admitted that he was employed there.

(3) Further investigation revealed that he was subject to a removal order and pending execution of that order had been released by the Immigration Department on a recognizance.

(4) It was a term of his release on recognizance that he was not permitted to take up employment.  The appellant told the police officers that he was aware of that condition.

6.When the matter came on before me on 27 April one of the matters complained of by the appellant was that an earlier period of administrative detention had not been taken into account by another magistrate on another occasion and that this should have been deducted on this occasion.  I have now obtained a transcript of the proceeding in respect of that earlier charge which was heard on 2 February 2011

7.When the magistrate who dealt with the matter which is before me considered sentencing the appellant he prepared a chronology of the events leading to his prosecution.  That chronology reveals that :

(1) on 5 June 2007, the appellant unlawfully entered Hong Kong;

(2) on 14 April 2008, he was arrested by the police for unlawfully remaining in Hong Kong;

(3) on 6 May 2008, after having been detained by the Immigration Department, he was released on a recognizance;

(4) on 7 March 2010, he was arrested by the police for another offence and on 9 July 2010 was sentenced to 2 months imprisonment for Possession of an offensive weapon;

(5) on 2 August 2010, a removal order was made against the appellant;

(6) on 2 February 2011, the appellant was sentenced to 12 months’ imprisonment for the original offence of unlawfully remaining in Hong Kong having entered illegally.  On 3 October 2011, he was released from that term of imprisonment and about the same time and before enforcement of the removal order he lodged a torture claim;

(7) on 14 November 2011, he was again released on an Immigration Department recognizance; and

(8) on 22 February 2012, he committed the present offence.

8.The first period of administrative detention was between 14 April 2008 and 6 May 2008.  It is clear from the transcript of the proceedings of 2 February 2011 that the magistrate on that occasion had given to the appellant credit for that period of administrative detention.  As I have earlier indicated in the present matter the magistrate gave full credit for the second period of administrative detention.

9.In sentencing the appellant of this occasion the magistrate considered that the only mitigation was the appellant’s plea of guilty.  He applied the sentencing guidelines laid down by the Court of Appeal in HKSAR v. Usman Butt [2010] 5 HKLRD 452.  He was satisfied that the personal circumstances of the appellant did not afford any further discount from the appropriate sentence.

10.Having considered the magistrate’s reasons for sentence, I am satisfied that this sentence was correct.  Nothing advanced by the appellant on 27 April 2012 or today satisfies me that the sentence was anything other than entirely appropriate.  It is not manifestly excessive nor it is wrong in principle.  The appeal is dismissed.

Ms Rosa Lo, Public Prosecutor of the Department of Justice, for the Respondent

The Appellant in person, present