HKSAR v. Gurung Purna Bahadur

HCMA210/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 210 OF 2015

(ON APPEAL FROM FLCC 1221 OF 2015)

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JUDGMENT

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1.The appellant pleaded guilty to one count of taking employment while he was under a removal order[1]. Ms Merinda Chow, magistrate, sentenced him to 15 months imprisonment. He appealed against the sentence.

2.Shortly after 12 o’clock on 3 March 2015, two officers posing as customers went to Chung King Mansion.  They were led to ‘Holiday Guesthouse’ to rent a room.  The appellant was at the reception counter and registered for the officers.  The appellant also accepted the room charge.  He was subsequently arrested. 

3.The magistrate knew that the appellant was detained by the Immigration Department for 364 days from December 2011 to January 2012[2]. She however opined that the present offence was obviously unrelated to the administrative detention.  She refused to exercise her discretion to reduce the sentence relying on two authorities.[3] In both cases, the Court of First Instance agreed with the sentencing magistrates that the administrative detention was not related to the offence in question and was therefore not within the scope of s 67A(1A), Criminal Procedure Ordinance, Cap 221. 

Details of the appellant’s detention

4.The appellant first came to Hong Kong in June 2004. He overstayed until May 2008 when he was arrested by the police.  He was granted bail pending his torture claim. 

5.His torture claim was dismissed by the Director of Immigration on 23 September 2011.  His appeal was also rejected by the Adjudicator on 17 August 2012.  He was detained by the Immigration Department from 24 December 2011 to 21 December 2012 pending removal. 

6.He was again released on bail pending judicial review of the above decisions.  The Adjudicator’s decision was quashed on 18 September 2014.  His claim was remitted back to the Torture Claims Appeal Board for reconsideration. 

7.The appellant was detained by the Immigration for a total of 379 days according to Mr Daryanani, Senior Public Prosecutor, for the respondent. 

Grounds of Appeal

8.The appellant pointed out that the magistrate failed to consider the period of administrative detention by the Immigration Department. 

Discussion

9.According to s 67A(1A), when a person is sentenced for an offence, a period of detention is only deductable from the sentence if,

a that period of detention is immediately prior to his first appearance in any proceedings relating to that offence, and

b that period of detention is in connection with that offence.

10.In our present case, the appellant was detained in 2011—2012 under Part VII of the Immigration Ordinance.  It was not in connection with the offence of the present appeal— ‘taking employment when he was under a removal order’.  Further, the period of detention is not immediately prior to the appellant’s first appearance in any proceedings in relation to the ‘taking employment’ offence.

11.In my judgment, the appellant is not entitled to any deduction under s 67A (1A). 

12.The only issue is whether the magistrate should have exercised her discretion for reducing the sentence.  In my view, there must be sound basis for exercising the discretion.  Factors may include the time lapse between the detention period and the subsequent offence; the length of the detention period; the nature and circumstances of the subsequent offence and humanitarian grounds etc. 

13.In the present appeal, the subsequent offence was committed about two and a half years after the detention period ended.  The appellant admitted to this court that he had been working there for over a year.  He was fully aware of the prohibition against taking up employment.  There is no humanitarian ground.  Given all these, the magistrate could not be criticized for not exercising her discretion.  

14.I dismiss the appeal.

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

The appellant is unrepresented