HKSAR v. Mohammad Iftikhar

HCMA 6/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 6 OF 2013

(ON APPEAL FROM KCCC 4083 OF 2012)

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J U D G M E N T

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1.The Appellant, a man in his mid-30s, pleaded guilty in the Magistrates’ Court on two charges. Charge 1 is of giving wrong information to the police. It is particularized as follows:

“MOHAMMAD IFTIKHAR, you are charged that on the 9^th day of October, 2012: inside Room C, 1/Floor, 46 Un Chau Street, Shamshuipo, Kowloon, in Hong Kong, you attempted to mislead Police Constable 7091 SEE Chun-pong, a police officer, by the giving of false information, namely alleged himself to be JIWAN SINGH, aged 26, holder of Immigration Form No. 8 (RBCL/5547/2009(CZ), Serial No. A0192805, with intent to defeat the ends of justice.”

Charge 2 is of remaining without authority having landed unlawfully.  It is particularised as follows:

“MOHAMMAD IFTIKHAR, you are charged that on the 10^th day of October, 2012 Sham Shui Po Police Station, 37A Yen Chow Street, Shamshuipo, Kowloon, in Hong Kong, you, having landed in Hong Kong unlawfully, did remain in Hong Kong without the authority of the Director of Immigration.”

2.He was sentenced to a total of 15 months’ imprisonment.  This total is made up of concurrent terms of 3 months on Charge 1 and 15 months on Charge 2.  He now appeals against his sentence.

3.Four amended perfected grounds of appeal against sentence have been filed on his behalf.  These read as follows:

“(1) In imposing a concurrent sentence and making the total sentence 15 months, the learned magistrate had not given any real benefit to the Appellant on account of 2½ months administrative detention; had he applied HKSAR v Tran Viet Thanh [2012] 1 HKLRD 903 properly, the total sentence of the two charges would in any event be 15 months and/or the two sentences should in any event run concurrently;

(2) The learned magistrate had not been informed of the correct position, that is, between June 2007 and May 2008, the Appellant had been under administration detention for some 11 months (instead of 2½ months in the beginning of 2007 as the learned magistrate conceived);

(3) The learned magistrate should have taken the 11 months period of administration detention into account as, by virtue of Section 67A of the Criminal Procedure Ordinance Cap 221, in computing the length of the sentence of 15 months, the Correctional Services Department would not reduce the period by reason of the administration detention and that would result in unfairness to the Appellant;

(4) In all the circumstances is manifestly too high or too harsh.”

4.There is no dispute that following the Appellant’s release from prison on 21 June 2007 after serving a sentence for offences unrelated to the offences in the present case, he was detained at an immigration centre until he was deported from Hong Kong on 23 May 2008.  In other words, he was in administrative custody for that period of 11 months.  The offences in the present case were committed after he had, four years after being deported from Hong Kong on 23 May 2008, re‑entered Hong Kong by stealth on 10 August 2012.

5.I do not say that fairness can never require that a sentencing court take into account a period of administrative detention even though such detention is unrelated to the offence or offences for which sentence is being passed.  Here, however, the Appellant returned to Hong Kong unlawfully after having been deported.  I do not think that the circumstances of this case requires that account be taken of the period of administrative detention which he underwent prior to deportation years ago.  For that reason, grounds 1, 2 and 3 fail.

6.There is no basis for regarding the sentence which the Appellant received as too high or too harsh.  So ground 4 as well fails.

7.Accordingly this appeal is dismissed.

Mr Andy Hung, instructed by the Legal Aid Department, for the appellant

Mr Michael Tsang, of the Department of Justice, for the respondent