HKSAR v. Jabroat Anosh

HCMA 573/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 573 OF 2014

(On appeal from ESCC No 2482 of 2014)

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J U D G M E N T

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1.On 25 August 2014, the appellant was convicted on his own plea of possession of an identity card relating to another person (Charge 1), theft (Charge 2), driving without a driving licence (Charge 3), using a vehicle without third party insurance (Charge 4), and remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong (Charge 5).

2.The magistrate, Mr David Cheung Chi Wai, sentenced the appellant to 18 months’ imprisonment.  The appellant sought a review of the sentence pursuant to section 104 of the Magistrates Ordinance, Cap 227, which was dismissed by the magistrate.  The appellant appealed his sentence which was heard today.  I dismissed the appeal and these are my reasons for doing so.

3.The brief facts of the offences are as follows. At 2:15 am on 11  July 2014, the appellant was driving a light goods vehicle, registration number PU 2281, in a zigzag manner along Peak Road, Central. The appellant was intercepted by police officers for enquiry.  He was found to be in possession of a Hong Kong Identity Card and a driving licence of a person by the name Mohammad Sarwar Mohammed.  The appellant could not provide personal particulars in relation to this named person. He failed to produce a valid driving licence. The police officers arrested the appellant (Charges 1 and 3).

4.The appellant was later interviewed under caution and admitted he was in possession of the identity card and driving licence which he said he found in a van.  The owner of the identity card and driving licence acknowledged that he knew the appellant since June 2014.  He said he had lost these items on 9 July 2014 (Charge 2).

5.The appellant claimed that he was driving the vehicle on behalf of Ghazanffar Khalid who had been asked by his uncle to drive the vehicle for a delivery job.  As he was sick, he asked the appellant to drive the vehicle on his behalf.  The appellant produced to him the identity card and driving licence belonging to another person.  The appellant does not have a Hong Kong identity card or valid driving licence.  As a consequence, he was driving without any third party insurance (Charge 4).

6.On 11 April 2014, the appellant entered China from Pakistan and then entered Hong Kong illegally from Shenzhen (Charge 5).

7.The appellant is a national of Pakistan and 28 years old.  He has no previous convictions in Hong Kong.  In Pakistan, he worked as a machine operator in a clothing factory.

8.For Charge 1, the magistrate applied the starting point of 15 months’ imprisonment as suggested in HKSAR v Li Chang Li [2004‑2005] HKCLRT 193 for the offence of an illegal immigrant in possession of a forged identity card, where possession of it for a benefit was an aggravating factor.  The magistrate held that the identity card in the present case was not forged but stolen which made no difference when it came to sentencing the appellant.  The magistrate also held that the appellant used the identity card to drive the van in order to earn a living, which was a benefit.  The magistrate considered that an appropriate sentence upon a guilty plea was 16 months’ imprisonment.

9.For Charge 2, which concerned the stealing the identity card and the driving licence from the owner, the magistrate imposed a starting point of 6 months’ imprisonment which he reduced to 4 months’ imprisonment for his guilty plea.

10.For Charge 3, which concerned driving without a valid driving licence, the magistrate imposed a starting point of 6 weeks’ imprisonment which he reduced to 4 weeks’ imprisonment for his guilty plea.

11.For Charge 4, which concerned driving without third party insurance, the magistrate applied HKSAR v Wong Chi Ming HCMA 510/1999, and imposed a starting point of 3 months’ imprisonment which he reduced to 2 months’ imprisonment for his guilty plea.  He also ordered that the appellant be disqualified from obtaining all types of driving licences for 12 months. 

12.For Charge 5, which concerned remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, the magistrate applied HKSAR v So Man King [1989] 1 HKLR 142, and imposed a sentence of 15 months’ imprisonment.

13.The magistrate made the sentences on Charges 1, 2 and 5 concurrent and the sentences on Charges 3 and 4 concurrent, with the concurrent sentences on Charges 3 and 4 to run consecutively with the concurrent sentences on Charges 1, 2 and 5.  This made a total sentence of 18 months’ imprisonment.

14.At the hearing of the appeal, the appellant did not dispute the appropriateness of the sentences imposed for the offences for which he was convicted.  He applied for a reduction of the overall sentence on humanitarian grounds.  He claimed that he had a sick sister who had a lung disorder.  He said she was gravely ill and only had months to live.  This was a matter that was addressed before the magistrate at the time he sentenced the appellant. 

15.A medical certificate was produced to the magistrate and stated that the appellant’s sister had bronchial asthma and that she had been hospitalised from 16 to 26 July 2014.  The certificate was on the letterhead of Dr Muhammad Arshad Chahal who is described as a “Specialist in Liver, Stomach, HBV, HCV”, at the Fazil Memorial Hospital, Gujranwala.

16.It was submitted to the magistrate that the medical condition of the sister would come and go and be with her for the rest of her life.  It was also submitted to the magistrate on 24 July and later on 25 August 2014 that the appellant’s sister was critically ill.  The certificate was submitted on 25 August 2014 and stated that her asthma had been exacerbated by severe mental stress.  It was claimed that this stress was caused by the news that her brother, the appellant, had been sentenced to imprisonment. 

17.The appellant submitted at the hearing of the appeal inconsistent accounts as to the situation with his sister.  At one stage, he said she had been released from hospital and at another that she had been admitted into the intensive care unit.  The contents of medical certificate that the sister’s condition had been exacerbated by mental stress stands in contrast with the appellant’s description of the nature and state of her condition.

18.I note that the appellant came to Hong Kong on 15 April 2014 and he claimed that he did so in order to earn money to pay for his sister’s medical expenses.  However, he acknowledged he had not sent any money back to Pakistan since being here.  He was not able to produce any other documentation and the medical certificate does not describe the sister’s illness as being critical. 

19.The magistrate did not accept that the condition of the appellant’s sister was as serious as claimed and that it did not constitute a valid humanitarian ground to be taken into account for a reduction of sentence. I agree with the magistrate’s assessment of this matter and on the additional information submitted to me by the appellant, I find that the purported illness of the appellant’s sister and the circumstances of her condition as claimed by the appellant to be doubtful, and in any event do not provide a ground for humanitarian consideration.  On the material before me, the illness of the sister is not severe and her hospitalisation in July was due to mental stress.  Assuming what the appellant had said about his sister’s condition was true, he nevertheless came to Hong Kong illegally and committed the offences for which he was convicted, knowing that his sister was ill and in need of his care.  It is now on this basis that he seeks a reduction of sentence so that he can return to Pakistan to be with his sister who he left in April 2014. 

20.I find no basis to interfere with the sentence imposed by the magistrate or with the manner by which he has considered and determined the sentences.  The appeal against sentence is dismissed.

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

The appellant in person