HKSAR v. ABAD, CHOUDHRY SHAHZAD

HCMA530/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.530 OF 2004

(ON APPEAL FROM KCCC 5837 OF 2004)

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J U D G M E N T

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1. The appellant was convicted on his own plea of one charge of 'Breach of Condition of Stay', and was sentenced to five months' imprisonment. He appeals against both conviction and sentence.

The proceedings below

2. The facts as agreed by the parties were simple :

"On 20th April 2004, the defendant surrendered to the Immigration Department for having overstayed. Enquiries revealed that the defendant came here on 19th December 2001 and was last permitted to remain as a visitor until 29th December 2001. However, the defendant did not leave on or before this date as required and had since overstayed for two years and three and a half months."

3. After alluding to the fact that the appellant was of clear record, and that he wished to return to Pakistan to see his sick mother, the magistrate had this to say about sentence :

"The period of overstay had been lengthy. No reason was given to me to excuse the period of overstay. The medical documents submitted to me on the sentence date and on the review date certainly appeared to show that the appellant's mother was suffering from liver and kidney failure. However, the appellant's mother was not of advanced age, appearing to be aged 50, and treatment was indicated, including dialysis. There was nothing in the documentation to show that the situation involving the appellant's mother was life-threatening.

I therefore took a serious view of the appellant's conduct. I took as a starting point a period of imprisonment of nine months. I gave the appellant full credit for his plea of guilty and reduced the sentence to one of six months imprisonment. I noted that the appellant had surrendered to the authorities. That is something to be encouraged and I further reduced the sentence to one of imprisonment for five months."

The appeal against conviction

4. Notwithstanding the fact that it was entered on his own plea, the appellant lodged an appeal against the conviction. Before me, he explains that that is because he did not understand the meaning of the word conviction. Now that it has been explained to him, he will withdraw the appeal.

The appeal against sentence

5. Two grounds have been filed on the appellant's behalf as follows :

"1. The learned Magistrate in considering sentence is wrong in principle, namely :-

(a) There is no factual basis for the learned Magistrate to regard the present case is a serious case;

(b) There is no evidence that the appellant while overstaying had conducted himself in a manner that justifying a severe sentence.

2. The sentence of five months is manifestly excessive."

6. For Ground 2, counsel relies on the cases of HKSAR v. Tiongson Patricia Manalad, CACC268/2001, and R. v. Iqbal Zahid, HCMA560/1996.

7. I am persuaded that both grounds are substantiated. In particular, the authorities suggest that nine months after trial is twice more than what is acceptable for a first offender overstaying for a three-year period.

8. The appeal against conviction is dismissed. The appeal against sentence is allowed. The five-month term is set aside. Taking into account everything that can be said on the appellant's behalf, it is substituted by one of two months.

Representation:

Mr P.K. Madigan, SGC of the Department of Justice, for the Respondent

Ms Susanna Lee Wai Yan, instructed by Messrs Johnnie Yam, Jacky Lee & Co., assigned by the Director of Legal Aid, for the Appellant (deal with sentence only)

The Appellant in person (deal with conviction only)