HKSAR v. Shak Nasir

HCMA 147/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 147 OF 2014

(ON APPEAL FROM FLCC 2665 OF 2013)

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REASONS FOR JUDGMENT

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1.At the conclusion of the hearing on 8 April 2014, I announced that the appeal was dismissed.  I also announced that I should hand down the reasons for my judgment today, which I now do.

2.The appellant was the 3rd Defendant in a case in which he and others were charged with various offences.  He pleaded not guilty to charge 1, and was tried before Deputy Magistrate WONG Nga Yan Peony.  He was acquitted of that charge after trial.  He was, however, convicted of charge 5 on his own plea.  Charge 5 is “taking employment while being a person in respect of whom a removal order is in force”, contrary to section 38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap 115.  The particulars of the charge were that on 6 July 2013, at DD 52 (ie Demarcation District No. 52), Lot 513, Man Kam To Road, Sheung Shui, New Territories, Hong Kong, the appellant, while being a person in respect of whom a removal order was in force, took employment whether paid or unpaid, ie as an odd job worker.  For this offence, the magistrate passed a sentence of 15 months’ imprisonment on him.

3.He appeals against sentence.  I hasten to add, however, the 15 months’ imprisonment is not his complaint.  He appeals against the magistrate’s refusal to exercise her discretion to allow a period of 46 days during which he was under administrative detention to be deducted from the 15 months.  His request to reduce the sentence by the 46 days was first made in his application for review of sentence before the magistrate, which she refused on 7 February 2014.

4.The period of the said detention and the reason that gave rise to it are not in dispute.  The appellant arrived in Hong Kong on the strength of his Bangladeshi passport on 11 July 2006, and was permitted to remain as a visitor in Hong Kong for 14 days until 25 July 2006.  He was arrested on 30 April 2007 for overstaying.  After being referred to the Immigration Department by the police, he was released on recognizance on 14 June 2007, having been detained by the Immigration Department in administrative detention for 46 days.

5.The story continues. The appellant’s last immigration recognizance was issued on 13 July 2010.  A removal order was issued on 8 June 2012 and served on him on 26 June 2012.  The removal order remained in force on 6 July 2013 when the offence took place, and the appellant understood that he was not allowed to take up employment in Hong Kong.  He was seen moving and handling carton boxes from a container, which constituted the offence.

6.At the time of the offence, the appellant was 33 years old, a single man, with a clear criminal record.  He had lodged a torture claim in 2007, which was refused in 2013.   He has made similar claims which are pending determination.  Counsel on his behalf told the magistrate in mitigation that the offence was the first time that he had taken up employment in Hong Kong, that the job nature and arrangements were rather casual, that the amount of remuneration had yet to be agreed, and that there was no express indication that money would be paid.  The appellant had only worked for less than 10 minutes when the officers arrived.  It was also said that he had demonstrated his remorse and saved the court’s time by pleading guilty at the earliest opportunity.

7.In her Reasons for Sentence, the magistrate said that she had considered and followed the guideline of 15 months’ imprisonment upon a plea of guilty in HKSAR v Usman Butt [2010] 5 HKLRD 452, when imposing the sentence of 15 months’ imprisonment on the appellant.  She continued:

“7. … Defence counsel readily admitted that the period of administrative detention was unrelated to the charge in question, and that the review was made solely on the ground of mercy, as the sentence of 15 months’ imprisonment was in line with the relevant authorities.

8.      At the review application hearing, Senior Public Prosecutor representing the Department of Justice submitted Written Submissions together with 4 authorities.  The relevant legal principles can be clearly deduced from the said authorities: that the Court has a discretion to deduct the period of administrative detention from the sentence passed, but a defendant is not entitled to a discount where the said period is unrelated to the offence for which the sentence of imprisonment was imposed.”

(Emphasis added.)

8.The four authorities to which the magistrate was referred are HKSAR v MD Emeran Hossain HCMA 66/2013, HKSAR v Mirza Munawar Luqmah HCMA 605/2013, HKSAR v MD Kamal HCMA 13/2011, and HKSAR v Bogoda Appuhamilage Pramesh Malinda Dharmawardena HCMA 663/2010.

9.Save in Bogoda, the appeals in those cases for reduction of sentence by the administratively detained period were dismissed.  In Bogoda, the appellant was among a group of appellants who appealed against their sentences, all having pleaded guilty and been sentenced to 15 months’ imprisonment.  For those appellants who had spent time in administrative detention, all except the appellant were granted deduction of one month from the sentence of 15 months’ imprisonment adopted by the magistrate.  It was held that the court had a discretion to allow some reduction of sentence for such periods of detention.  As the appellant formed part of the large group of appellants who had adopted a responsible approach to their appeals, he might have a justifiable sense of being treated unfairly unless he received some form of reduction.  The Court of First Instance therefore reduced the appellant’s sentence to 14 months’ imprisonment.

10.The magistrate, however, refused to exercise her discretion in favour of the appellant.  She pointed out that the special factor featured in Bogoda was not present; and

“13. … I note that as in HKSAR v MD Kamal, there was no voluntary surrender to the authorities or other strong humanitarian reasons. The period of administrative detention underwent by the Appellant was back in 2007, i.e. over 6 years before the sentence was imposed, and was wholly unrelated to the charge.”

11.On behalf of the respondent, Public Prosecutor Ms Audrey Parwani made written submissions that the magistrate was correct not to exercise her discretion in favour of the appellant.  Section 67A(1A) of the Criminal Procedure Ordinance, Cap 221 provides:

(1A)  The length of any sentence of imprisonment imposed on a person by a court shall also be treated as reduced by any period during which he was, immediately prior to his first appearance in court in connection with any proceeding relating to the offence for which the sentence of imprisonment was imposed, in custody-

(a) …

(b) under Part VII of the Immigration Ordinance (Cap 115) in connection with that offence.

(Emphasis added.)

12.Her submission is that it is clear from the wording of the Ordinance, that the time spent in detention, if it is to be discounted, has to relate to the offence for which the appellant was sentenced.  The appellant’s administrative detention is not qualified for discount as it was in relation to his overstaying in Hong Kong, not in relation to his taking up unapproved employment.

13.Ms Parwani further submitted that the magistrate had also considered the pertinent authorities that support the principle that a defendant is not entitled to a discount where the administrative detention was unrelated to the offence for which he was being sentenced, and that the magistrate had also noted that there had been no surrender to authorities or other strong humanitarian grounds to reduce the sentence.

14.At the hearing, the appellant handed up a letter dated 8 April 2014 by which he ought leniency.  In the letter, six names with six case numbers were set out.  He explained that those were his fellow inmates in Pik Uk Prison who were convicted of working in Hong Kong without authorization.  When each of them or his lawyer mentioned to the sentencing magistrate the period of his administrative detention, he was given a deduction from his sentence accordingly.  The appellant was, however, not able to produce any paper to show me these cases or, more importantly, the reasons for the deduction, if he was correct in his representations to me.  He said such deduction was always given in cases dealt with in the Shatin and Kowloon City Magistracies, but not in his case which was before a magistrate sitting in the Fanling Magistracy.

15.Ms Parwani submitted that there was no way for the court to know the reasons behind those six cases and nothing was produced or submitted by the appellant that showed that the magistrate in the present case had erred in any respect.  Ms Parwani made the point, which I consider valid, that insofar as the magistrate in the present case did not make any mistake, the appeal ought to be dismissed.  There might be a number of reasons that might have resulted in the deductions being given, if the cases referred to by the appellant were true.  She referred to Usman Butt at p 31 G-I, where the Court of Appeal mentioned adjustment of the sentence of 15 months’ imprisonment after plea:

“55. We would refrain at this stage from giving detailed guidelines on how the sentence may be adjusted. We would adopt what has been said in So Man King and only add that repeated offences is clearly an aggravating factor.

‘The guideline already allows for the almost inevitable plea of guilty, but voluntary surrender to the authorities should warrant a substantial discount, and strong humanitarian considerations should always be honoured, even to the extent sometimes of suspending whatever prison sentence is otherwise thought appropriate.  On the other hand, the Court should take into account, by upward adjustment, any previous unlawful entry, whether resulting in prosecution or not, and other circumstances which may aggravate the offence, such as the actual use of a forged or other person’s identity card to obtain some particular benefit.’”

16.Ms Parwani submitted that there could be a number of reasons why deductions were given in the six cases referred to by the appellant, but there was no reason to justify the exercise of discretion in the present case.  Even if the six cases were decided differently from the present case, still it did not support the conclusion that the magistrate was wrong in refusing to accord the appellant the deduction requested.  Of course, it would be wrong for different magistrates’ courts to have different practices, if what the appellant represented was true, but this Court should follow the law and the correct practice without hesitation.

17.In my judgment, according to the authorities cited by the magistrate, the sentence imposed by her on the appellant was neither wrong in principle nor manifestly excessive.  The appellant has not satisfied me that there is anything wrong with the magistrate’s refusal to exercise her discretion to reduce the sentence by 46 days as requested by him.  The appeal is therefore dismissed.

Ms Audrey Parwani, Public Prosecutor of the Department of Justice, for the Respondent

Appellant in person