HKSAR v. Md Sakib, Ahmed

HCMA 851/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 851 OF 2012

(ON APPEAL FROM ESCC NO. 3649 OF 2012)

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JUDGMENT

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Introduction

1.On 29 October 2012 the appellant was convicted by Ms B Chainrai at Eastern Magistrates’ Court of four offences.  The offences were:

(a)  using a forged identity, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap 177;

(b)  using a forged identity card, contrary to section 7A(1) of Cap 177;

(c)  breach of condition of stay (taking up unlawful employment), contrary to section 41 of the Immigration Ordinance, Cap 115; and

(d)  breach of condition of stay (overstaying), contrary to section 41 of Cap 115.

2.The appellant was sentenced to 15 months imprisonment for each of the offences of using a forged identity card, 2 months imprisonment for the breach of condition of stay offence that related to his taking up unlawful employment and 4 months imprisonment for the breach of condition of stay offence that related to his overstaying.  The magistrate ordered that all sentences be served concurrently except for the sentence for the overstaying offence which she ordered to be served consecutively to the other offences.  The resulting order was that the appellant was sentenced to a total of 19 months imprisonment.

3.On 16 November 2012 the appellant applied to the magistrate to review the sentences she had imposed on him but his application was dismissed.  The appellant now appeals those sentences.

The Background to the Offences

4.The appellant entered Hong Kong in August 2006 when he was permitted to remain for two days.  He overstayed in Hong Kong until his arrest on 28 September 2012.

5.The offences came to light when the appellant sought employment by a company in Tuen Mun.  At this time the appellant produced a forged identity card which was accepted without query.  However, the appellant was required to attend other premises of the company at International Finance Centre in Central where he was seen by a security manager.  The security manager also examined his identity card but he noticed that it appeared to be thicker and the colour darker than a normal identity card.  He became suspicious and made a report to the police.  When the police arrived they arrested the appellant.

The Mitigation Advanced at Trial

6.The appellant’s antecedents revealed that he had previously entered Hong Kong and been convicted in 2003 of breach of condition of stay for which he had been sentenced to a period of 2 months imprisonment suspended for 2 years.  He then left Hong Kong and re‑entered again in 2006.

7.The appellant is a 35 years old single man from Bangladesh.  He explained that he overstayed in Hong Kong from 2006 because of problems in Bangladesh that he said made him fearful of returning there.  Although his parents are both alive and in their seventies, he claimed that his mother was not well and he committed the offences because of his need for money in order to return home and pay for his mother’s medical expenses.

8.In his application to review his sentence he asserted before the magistrate that his mother was very ill having suffered a stroke.  He wished to return home as soon as possible so he could take care of both parents.  He was at that time unable to provide any medical documentation to support his claim of his mother’s critical medical condition.

The Appeal

9.Before me today the appellant has not been able to point to any error by the magistrate in her approach to his sentencing.  His appeal is based entirely upon a request for mercy given the condition of his mother and his elderly father.  This time, before me, the appellant has produced medical documentation to support his claim as to his mother’s medical condition.

Discussion

10.This appeal is an appeal by way of rehearing but an appropriate starting point for the purpose of conducting a rehearing is to examine the record to see whether there has been any error by the magistrate in her approach to the sentencing of this appellant.  In respect of the individual sentences which she adopted I can find no such error.  They are all consistent with authority.

11.As the first three offences all arose out of the same incident with none of them adding to the culpability of the other, it was quite proper for the magistrate to order that the sentences in respect of each be served concurrently.  This brings me to the magistrate’s order that the sentence of 4 months imprisonment for the breach of condition of stay offence relating to his overstaying since 2006 be served consecutively to the other sentences.  This offence is quite separate from the other offences and does add to the overall culpability of the appellant’s conduct.  The magistrate was entitled in law to order that that the whole of this sentence be served consecutively to the others.

Conclusion

12.There is no legal error by the magistrate and I can see no reason myself why the sentences of the magistrate should not be imposed on this appellant. The only reason to depart from her sentences is for merciful reasons.  However, claims for the merciful intervention of the court are easily made but will not usually be entertained unless there is some credible support for them and even then may not justify the imposition of a sentence less than that which is appropriate for the culpability of the offender.  Here the offences are ones which called for deterrent sentences.  The Appeal Courts have made it clear that the predominant sentencing consideration for offences of this nature is deterrence.

13.This appellant has previously committed an offence of overstaying that was in 2003 and clearly his experience with the court then at no great impact on him.  He came to Hong Kong in 2006 and has been overstaying for some 6 years before his unlawful presence in Hong Kong was detected.

14.I can find no justification for extending to him the merciful intervention of the court notwithstanding that I accept his claims that his mother is not well.  In the circumstances of this particular case I am of the view that the principles of deterrence both personal and general must prevail over extending mercy to him in regard to his personal circumstances.

15.I, therefore, find that the sentences of the magistrate are correct and are not manifestly excessive and I dismiss the appeal against sentence.

Mr Andrew Li SPP, of Department of Justice, for the respondent

The appellant appeared in person