HKSAR v. Jibon Ahmed

HCMA 662/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 662 OF 2014

(ON APPEAL FROM STCC 2556 OF 2014)

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REASONS FOR JUDGMENT

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1.This was an appeal against conviction and sentence. At the hearing of the appeal the appellant abandoned his appeal against conviction. Upon his abandonment the appeal against conviction was dismissed.

2.At the conclusion of the hearing of appeal I dismissed the appeal against sentence and now hand down my reasons.

3.The appellant was convicted after trial of an offence of 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 deputy magistrate[1] sentenced the appellant to 17 months’ imprisonment. 

The facts

4.At around 1205 hours on 23 June 2014, a police officer patrolled to an unnamed car repairing depot in Pat Heung, Yuen Long. He saw the appellant inside.  The appellant was wearing a blue jumpsuit and a pair of black wellingtons.  He was holding a pressure spray gun with both hands and was using it to clean a blue trailer inside the depot. His use of the spray gun was observed by the police officer for about five minutes. 

5.After making the above observation, the officer approached the appellant.  The appellant showed the officer his recognizance form upon request for identification documents. After enquiries were made, the appellant was arrested and cautioned.

6.The appellant arrived in Hong Kong on 3 April 2007 as a visitor and was allowed to remain for 14 days.  He was arrested by police on 16 March 2011.  A removal order against the appellant was issued on 20 Sep 2011.  The removal order remained in force at the time of his arrest for the present offence.  On 27 June 2013, an immigration recognizance form was issued to the appellant.  The appellant was aware that he was prohibited from taking up any employment.

Reasons for sentence

7.In his reasons for sentence the deputy magistrate stated that he had regard to the guidelines articulated in HKSAR v Usman Butt & Another.[2]  Having regard to the guidelines that upon a plea of guilty a sentence of 15 months’ imprisonment was appropriate he adopted a starting point of 22 months and 2 weeks to reflect the fact that the appellant was convicted after trial.  He discounted from that term 165 days that the appellant had previously spent in administrative detention and reduced the sentence to 17 months’ imprisonment.  He considered there to be no other mitigating factor.  

Grounds of appeal

8.In the appellant’s notice of appeal against sentence the sole ground of appeal was that the sentence was too severe.  At the hearing the appellant abandoned the ground of the severity of sentence however sought the merciful intervention of the court in order to obtain a reduction of sentence. The appellant stated that he wished to return to Bangladesh in order to see his mother who was hospitalized and two orphaned children of his friend in Bangladesh as they were all suffering hardship. 

Mitigation before the deputy magistrate

9.In mitigation before the deputy magistrate the appellant’s counsel submitted that the appellant was a 38 years old Bangladeshi torture claimant in Hong Kong, he had 4 previous convictions.  The appellant’s mother was hospitalised in Bangladesh for a heart ailment.  He submitted that the length of sentence would impose some hardship as the appellant would not be able to keep regular contact with his family and be kept a breast with their condition. 

Conclusion

10.The grounds advanced by the appellant are not a basis for the reduction of the sentence imposed. The deputy magistrate was correct to find that there were no mitigating factors.  It was right for the deputy magistrate to have regard to the guideline sentence laid down in Usman Butt.

11.For the reasons expressed above the appeal against sentence was dismissed.

Ms Audrey Parwani, PP of the Department of Justice, for the respondent

The appellant appeared in person