Case Detail

HCMA000321A/2003

HCMA 321/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 321 OF 2003

(ON APPEAL FROM WSCC 202 OF 2003)

____________________

BETWEEN
	HKSAR	Respondent

	AND

	MOHAMED NALURDEEN MOHAMED RIYAZ	Appellant

____________________

Coram: Deputy High Court Judge Longley in Court

Date of Hearing: 8 August 2003

Date of Judgment: 8 August 2003

_______________

J U D G M E N T

_______________

1. This is an appeal by the Appellant out of time against a sentence of 16 months' imprisonment imposed upon him by Mr T S Jenkins sitting at Western Magistrate's Court on 6 March 2003 upon his plea of guilty to a count of Breach of a Deportation order made on 17 October 2000, contrary to section 43(1)(a) of the Immigration Ordinance Cap. 115.

2. Originally the Appellant did not appeal against sentence. On 21 March 2003, he unsuccessfully attempted to persuade Mr Jenkins to review the sentence of 16 months' imprisonment. Subsequent to that, on 2 April 2003, he lodged an appeal against his conviction.

3. The appeal against conviction came before this Court on 12 June 2003. On that occasion, the Appellant accepted that he had been in Hong Kong in breach of the deportation order in question. There was therefore no substance in his appeal against conviction, particularly as he had pleaded guilty at a time he was legally represented.

4. He did however urge matters upon me which he said justified a reduced sentence.

5. I was not completely clear as to why he had not filed an appeal against sentence. Taking a view favourable to the Appellant, it appeared to me that it might have been because he was under a misapprehension that because he had asked for a review of sentence, it was not appropriate to lodge an appeal against sentence.

6. Accordingly it seemed to be just to give him leave to appeal against sentence out of time.

7. The Court has now heard the Appellant's submissions and read the Reasons for Sentence of the learned Magistrate.

8. The matters put before me today by the Appellant have essentially been based on the hardship his imprisonment has brought upon his wife and children in Sri Lanka. He has told me that his own family have rejected him for marrying out of his religion. His first child suffers from a hole in the heart. His wife has just given birth to a daughter. She is living in reduced circumstances, surviving by making and selling lunch packets.

9. In his Reasons for Sentence, it is clear that the learned Magistrate in deciding upon the appropriate starting point was influenced by the analysis of Beeson J of the gravity of the offence under section 43(1)(a) of the Immigration Ordinance in the case of HKSAR v. Nguyen Chi Trung alias Dong Van Thanh HCMA 1095/2001. She, rightly in my view, took the view that an offence under section 43(1)(a) (Breach of a Deportation order) is more serious than an offence under section 38(1)(b) of the Immigration Ordinance. She took the view, with which I also agree, that a proper sentence after plea for an offence of this type, on a first offender is 18 months' imprisonment.

10. This, as the learned Magistrate concluded in his Reasons for Sentence, meant a starting point of 27 months' imprisonment before plea. The learned Magistrate took into account the particular mitigating circumstances of the Appellant in adopting a reduced starting point of 20 months' imprisonment in this case. He then discounted that starting point by 1/3 to reflect the Appellant's plea of guilty.

11. In my view the learned Magistrate's approach was perfectly proper. The Appellant has no cause for complaint about the sentence passed.

12. He is an educated man and a businessman. He was deported from Hong Kong on 7 November 2000, after serving concurrent terms of 6 months' imprisonment for possession of a forged Hong Kong Identity Card and breach of his conditions of stay. The order was served upon him on the day of his deportation. Just over 2 years later, he deliberately flouted that order by returning to Hong Kong for business purposes.

13. At the time he entered into Hong Kong on this occasion, he would have been aware of the hardship that would result to his wife and children if he was apprehended by the authorities here. He cannot now therefore complain about the consequences of his conviction.

14. I dismiss the Appellant's appeal against sentence.

	(P K M Longley)
	Deputy High Court Judge

Representation:

Ms Peggy Lo, GC of Department of Justice, for HKSAR

Appellant in person, present

HCMA000321/2003

HCMA 321/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 321 OF 2003

(ON APPEAL FROM WSCC 202/2003)

____________

BETWEEN
	HKSAR	Respondent

	AND

	MOHAMED NALURDEEN MOHAMED RIYAZ	Appellant

____________

Coram: Deputy High Court Judge Longley in Court

Date of Hearing: 12 June 2003

Date of Judgment: 12 June 2003

_______________

J U D G M E N T

_______________

1. This is an appeal by the Appellant against his conviction. He was convicted on 6 March 2003 by Mr Jenkins sitting at Western Magistrate's Court of the offence of breach of a Deportation Order made on 17 October 2000, contrary to s. 43(1)(a) of the Immigration Ordinance, Cap. 115.

2. The Particulars of offence alleged that on 4 February 2003 at Flat B, 3/F, 20 Luen Yan Street, Tsuen Wan, being a person in respect of whom a deportation order dated 17 October 2000 was in force he was in contravention of that order.

3. The Appellant's conviction by Mr Jenkins followed a plea of guilty to the charge against him. At that time he was represented by a duty lawyer. On 21 March 2003, he unsuccessfully attempted to persuade Mr Jenkins to review his sentence. Subsequent to that, on 2 April 2003, he lodged an appeal against the conviction.

4. The admitted facts reveal that the Defendant had been arrested in Hong Kong on 30 January 2003 for an unrelated matter. Prior to being released on police bail, his fingerprints were taken and these revealed that he was the subject of a deportation order issued on 17 October 2000. The deportation order had been served on him on 7 November 2000 prior to his deportation that evening from Hong Kong to Colombo. An Immigration Assistant went to the Defendant's place of abode on 4 February 2003 and arrested him for breach of the deportation order.

5. The learned Magistrate found that the Defendant's plea of guilty and his admission of the facts was voluntary and unequivocal. The admitted facts proved the charge and the learned Magistrate accordingly convicted the Defendant as charged.

6. In his grounds of appeal, the Appellant said that he was not guilty of the offence to which he pleaded guilty.

7. However, when he appeared before me this morning, he accepted that he was in Hong Kong in breach of the deportation order in question. What he has urged before me today are matters which relate to sentence I am not completely clear as to why he did not file an appeal against sentence. It appears to me that it may be that he was under a misapprehension that because he had asked for a review of sentence, it was not appropriate to lodge an appeal.

8. In the circumstances, it appears to me to be just to give him leave to appeal against sentence out of time. I make an order therefore that he have leave to appeal against sentence out of time. I order therefore the matter to be remitted to the Magistrate for him to prepare a statement of findings in so far as sentence is concerned.

9. There is no substance in his grounds of appeal against conviction. He was legally represented. His plea was unequivocal. I dismiss his appeal against the conviction.

	(P K M Longley)
	Deputy Judge of the High Court

Representation:

Mr Hayson Tse SGC, of Department of Justice, for HKSAR

Appellant, in person, present

HKSAR v. MOHAMED NALURDEEN MOHAMED RIYAZ

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