HKSAR v. Masum

HCMA 513/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 513 OF 2014

(On appeal from KCCC No 1738 of 2014)

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J U D G M E N T

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1.The appellant appeals against the sentences imposed on him upon being convicted after trial of one charge of possession of the sale or for any purpose of trade or manufacture goods to which a forged trademark was applied (Charge 1) and one charge of taking employment while being a person in respect of whom a removal order was in force (Charge 2).

2.The deputy magistrate, Ms Vennie Chiu Wai‑yee, sitting at Kowloon City Magistracy, sentenced the appellant to concurrent terms of imprisonment of 8 months on Charge 1 and 22½ months on Charge 2.

3.The brief facts relating to the two offences were that on 29 October 2013, the appellant brought three foreigners to premises in Tsim Sha Tsui where there was a large quantity of counterfeit goods.  The goods consisted of watches, belts, wallets and bags bearing forged trademarks of well‑known and high‑end brand names.  The appellant had the keys to the premises.  The magistrate explained that she was satisfied that the appellant was in possession of the goods for sale and that he took the three foreigners to the premises as part of his employment.

4.The magistrate noted that the appellant was 34 years of age and had a clear record.  He had come to Hong Kong from Bangladesh in 2005 and was a torture claimant.  He was receiving welfare support while awaiting the outcome of his torture claim.

5.The magistrate addressed each charge in turn when considering an appropriate sentence.  On Charge 1, she considered that a deterrent sentence was warranted given the quantity of goods involved, the scale of the operation and the damage it would cause to Hong Kong’s commercial reputation.  She explained that she found that the counterfeit goods to be of high quality as evidenced by their labelling and packaging.  She considered the operation to be fairly sophisticated in that someone other than the appellant owned or rented the premises and hired others including the appellant to bring potential customers to the premises.  Accordingly, the magistrate imposed a term of imprisonment of 8 months on this charge.

6.On Charge 2, the magistrate was guided by the Court of Appeal decision in HKSAR v Usman Butt [2010] 5 HKLRD 452 where it held that an appropriate sentence for an offence of taking employment after entering unlawfully and remaining without authority in Hong Kong, or being subject to a removal or deportation order upon a plea of guilty was 15 months’ imprisonment.  On that basis, the magistrate imposed a term of imprisonment of 22½ months as the appellant had been found guilty after trial. 

7.The magistrate then took into account the totality principle and bore in mind that the two offences arose from the same incident and therefore made the sentences on each charge concurrent with each other.

8.The issue as I see it is whether the sentence imposed on Charge 2 was appropriate for the wrongdoing that had been committed by the appellant.  It is clearly apparent that the magistrate was guided by Usman Butt which came about in order to address the divergences of sentences that were imposed in the magistrate’s courts against persons who had been convicted for this offence.  The Court of Appeal applied the sentencing tariff in R v So Man King [1989] 1 HKLR 142 where a sentence of 15 months’ imprisonment was adopted after a guilty plea for the offence of a person unlawfully remaining in Hong Kong.  The Court explained that this was done to bring about greater consistency between sentences for wrongdoing in relation to illegal immigration.  The Court observed that the deterrent sentence of 15 months’ imprisonment ensured that illegal immigration would become less attractive with the risk of long jail term.  The Court specifically refrained from giving detailed guidelines on how the sentence may be adjusted and adopted what had been said in So Man King:

“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 though 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.”

9.The appellant submitted that he has an ill mother in Bangladesh and asked that he be treated leniently on humanitarian grounds.  I find no substance in his expressed concern about his mother as he left his home some ten years ago and it seems his mother’s health has only now become an issue as a result of the prison sentence he had received for these offences.  In any event, he has siblings in Bangladesh who can look after his mother whose ill health was generally described by him as kidney problems.

10.The magistrate followed the sentencing tariff of Usman Butt and on my appraisal of the factual circumstances of the case and the personal circumstances of the appellant, there is no basis to interfere with the sentence imposed.  Accordingly, the appeal against sentence is dismissed.

Mr Prakash L Daryanani, SPP of Department of Justice, for HKSAR

The appellant in person