HKSAR v. FAHEEN CHAUDHRY MUHAMMAD
- Citation
- HKSAR v. FAHEEN CHAUDHRY MUHAMMAD
- Status
- Judgment
- Jurisdiction
- Hong Kong
- Court
- Court of First Instance
- Decision
- 11 May 2007
- Posture
- Magistracy Appeal (criminal) / Appeal Against Sentence on Appeal From KCCC 574 of 2007
- Case number
- HCMA233/2007
- Language
- English
More details
- Court
- Court of First Instance
- Decision
- 11 May 2007
- Posture
- Magistracy Appeal (criminal) / Appeal Against Sentence on Appeal From KCCC 574 of 2007
- Case number
- HCMA233/2007
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The appeal was dismissed because the magistrate's rejection of the appellant's mitigation was supported by the record, the 15 month sentence was within the appropriate range for the offence and there was no demonstrable error of principle or fact warranting interference.
Court disposition
Appeal dismissed
Orders
- Conviction and sentence of 15 months imprisonment affirmed
02
Material facts
Parties
HKSAR
Respondent Counsel: Miss Winnie Lam, GC of Department of JusticeFAHEEN CHAUDHRY MUHAMMAD
Appellant Counsel: Appellant in personAmounts and remedies
- Imprisonment Sentence (months): 15
03
Procedural history
Posture
Magistracy Appeal (criminal) / Appeal Against Sentence on Appeal From KCCC 574 of 2007
04
Questions and positions
Legal issues
- 01
Whether the sentence of 15 months imprisonment for remaining unlawfully under section 38(1)(b) Cap.115 was excessive
- 02
Whether the appellant's mitigation (lack of knowledge of penalty, broken legs) warranted reduction of sentence
- 03
Whether the magistrate erred in rejecting mitigation and factual assertions
Party arguments
- Applicant
- Appellant pleaded guilty, asserted he was a foreigner unaware the offence carried a heavy penalty and asked the court to take into account that his legs were broken.
- Respondent
- Prosecution relied on the appellant's guilty plea, his admission of being an illegal immigrant, his travel history showing no lawful admission to Hong Kong and two previous convictions; magistrate found mitigation untrue or irrelevant and imposed a 15 month sentence which the respondent maintained was appropriate.
05
Court’s reasoning
Legal principles
- 01
Immigration Ordinance, Cap.115 s.38(1)(b)
Offence of remaining unlawfully is set out in section 38(1)(b) of the Immigration Ordinance and attracts custodial sentences in appropriate cases.
- 02
Appellate practice and criminal sentencing principles
Appellate courts will not interfere with a sentence unless it is outside the permissible range or the magistrate plainly erred in assessing mitigation.
06
Ratio, limits and disposition
Ratio decidendi
The appeal was dismissed because the magistrate's rejection of the appellant's mitigation was supported by the record, the 15 month sentence was within the appropriate range for the offence and there was no demonstrable error of principle or fact warranting interference.
Court disposition
Appeal dismissed
- Conviction and sentence of 15 months imprisonment affirmed
Source and reliance status
Court of First Instance · 11 May 2007
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Court of First Instance
Judgment· 11 May 2007
bjbj HCMA233/2007
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO.233 OF 2007 (ON APPEAL FROM KCCC 574 OF 2007) ---------------------------
BETWEEN HKSAR Respondent and FAHEEN CHAUDHRY MUHAMMAD Appellant --------------------------- Before : Deputy High Court Judge D. Pang in Court Date of Hearing : 24 April 2007 Date of Judgment : 24 April 2007 Date of Reasons for Judgment : 11 May 2007 ----------------------------------------------------- R e a s o n s for J U D G M E N T -----------------------------------------------------
AUTONUMOUT The appellant was convicted on his own plea of one count of remaining unlawfully contrary to section 38(1)(b) of the Immigration Ordinance, Cap.
115. He was sentenced to 15 months imprisonment. The appellant appeals against that sentence.
AUTONUMOUT At 9:10 p.m. on 18 January 2007, police officers were deployed to Pei Ho Street, Shamshuipo for a case of drunk person . There they found the appellant who was either unable or unwilling to produce any document of identification. It was only after he was taken to the hospital and had had some treatment that he surrendered his Pakistani passport for inspection. It showed he left Pakistan on 21 November 2006 and arrived China on the 30th. There was no further immigration record and the appellant admitted himself to be an illegal immigrant. He has two previous convictions.
AUTONUMOUT In the court below, the appellant had advanced all sorts of mitigation that the magistrate dismissed as either untrue or irrelevant. Before me, he said he was a foreigner and did not know the offence would carry such a heavy penalty. He also asked me to take into account the fact that his legs were broken.
AUTONUMOUT Plainly, this appeal has no merit. It is dismissed. (D. Pang) Deputy High Court Judge Miss Winnie Lam, GC of Department of Justice, for HKSAR Appellant in person, present
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