HKSAR v. ISLAM SHAFIQUL

HKSAR v. ISLAM SHAFIQUL

The judge exercised discretion to order partial concurrency: of the 12‑month illegal remaining sentence, 9 months to run consecutively to the 6 years 6 months trafficking sentence and 3 months to run concurrently, because 3 months of the immigration sentence reflected an aggravating enhancement already accounted for in the trafficking sentence and full consecutivity would result in double punishment absent compelling reasons.

Citation
[2019] HKCFI 1940
Parties
Prosecution: HKSAR; Accused: Islam Shafiqul
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
2 July 2019
Case Number
HCCC322/2018
Procedural Posture
Criminal / Sentencing Ruling (allocation of Concurrency) 2 July 2019
Outcome
Partial concurrency ordered: 9 months consecutive to the trafficking sentence and 3 months concurrent.
Legal Topics
Drug Trafficking, Illegal Remaining (immigration Offence), Sentence Concurrency/consecutivity, Non Refoulement Claim, Aggravating Factor: Asylum Seeker Status
Source Language
EN
Criminal Law Immigration Law Sentencing Drug Trafficking Illegal Remaining (immigration Offence) Sentence Concurrency/consecutivity Non Refoulement Claim Aggravating Factor: Asylum Seeker Status

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Parties

HKSAR

Prosecution

Islam Shafiqul

Accused

Procedural Posture

Criminal / Sentencing Ruling (allocation of Concurrency) 2 July 2019

Legal Issues

  1. 1 Whether the 12‑month sentence for illegally remaining should run concurrently or consecutively to the 6 years 6 months trafficking sentence
  2. 2 Whether the defendant's asylum seeker status is an aggravating factor that has already been reflected in the trafficking sentence and whether that creates a risk of double punishment if full consecutive sentences imposed
  3. 3 Appropriate application of Court of Appeal guidance that immigration offence sentences should normally be consecutive absent compelling humanitarian circumstances

Ratio Decidendi

The judge exercised discretion to order partial concurrency: of the 12‑month illegal remaining sentence, 9 months to run consecutively to the 6 years 6 months trafficking sentence and 3 months to run concurrently, because 3 months of the immigration sentence reflected an aggravating enhancement already accounted for in the trafficking sentence and full consecutivity would result in double punishment absent compelling reasons.

Court Disposition

Partial concurrency ordered: 9 months consecutive to the trafficking sentence and 3 months concurrent.

Orders

  • Of the 12 months imprisonment imposed for illegally remaining, 9 months to be served consecutively to the 6 years and 6 months imposed for trafficking in dangerous drugs and the remaining 3 months to be served concurrently with that sentence.