Hong Kong Case Law: Decisions & Judgments

Topic

Section 38aa immigration ordinance

Legal area

Court

24 Jan 2025

HKSAR v. DEWAN MD HATEM

Citation

[2025] HKCFI 1418
Court

Court of First Instance
Case number

HCMA40/2024

The Magistrate’s credibility findings concerning PW2 and the rejection of the defence witness were rational and supported by the evidence; circumstantial facts (commercial nature of goods, appellant’s operation of specialised pallet truck, contemporaneous requests to unload) permitted the inference that the appellant was undertaking paid employment in breach of the removal order, and no appellate error was demonstrated to justify overturning the conviction and sentence.
25 Nov 2022

HKSAR v. NUR, JANNAH

Citation

[2022] HKCFI 3545
Court

Court of First Instance
Case number

HCMA255/2022

The appeal is allowed in part: although the 15‑month guideline from Usmann Butt is a relevant starting point for s38AA(1)(c) offenders, sentencing guidelines are not binding. Given the appellant's individual circumstances, including job loss during the pandemic, inability to afford departure, early plea and humanitarian considerations, a 5‑month reduction from 15 to 10 months for Charge 5 is warranted while leaving the one‑day concurrent sentence for Charge 4 intact.
6 May 2022

HKSAR v. MEHMOOD ASIF

Citation

[2022] HKCFI 1230
Court

Court of First Instance
Case number

HCMA511/2021

The appellant's conduct in accepting payment and handling change permitted the irresistible inference he was taking employment under s38AA of the Immigration Ordinance; identification of the employer was unnecessary once taking employment was established, therefore the magistrate's conviction was correctly upheld.
21 Dec 2018

HKSAR v. ASJAD BAIG AND OTHERS

Citation

[2019] HKCFI 148
Court

Court of First Instance
Case number

HCMA489/2018

The magistrate erred in treating the observed conduct as giving rise to the sole and irresistible inference of employment; because reasonable alternative inferences existed and the reasons were scanty, the convictions were unsafe and must be set aside; a retrial was ordered as the evidence was not weak and appellants consented.
3 Jul 2018

HKSAR v. KALEEM, MUHAMMAD

Citation

[2018] HKCFI 1526
Court

Court of First Instance
Case number

HCMA200/2018

The appellate judge accepted the magistrate's primary fact findings and credibility assessments, found the defence account was contrived and incredible, concluded the only and irresistible inference from the evidence was that the appellant was employed and working in breach of section 38AA, and held the conviction was not unsafe thus dismissing the appeal.
27 Oct 2010

HKSAR v. USMAN BUTT AND ANOTHER

Citation

HKSAR v. USMAN BUTT AND ANOTHER
Court

Court of First Instance
Case number

HCMA70/2010

The Court held that the 15-month deterrent starting point established in So Man-king applies to offences under section 38AA(1)(a) and (b) of the Immigration Ordinance; consistency with s.38(1) and the legislative purpose of s.38AA require the same approach, subject to ordinary adjustments (guilty plea, humanitarian considerations, previous offending) and statutory credit for pre-sentence detention.
27 Oct 2010

HKSAR v. SUNIL KOIRALA

Citation

HKSAR v. SUNIL KOIRALA
Court

Court of First Instance
Case number

HCMA114/2010

The Court held that the So Man-king deterrent approach applies to offences under section 38AA(1)(a) and (b) and that a starting point of 15 months imprisonment is appropriate for such offences; reductions remain available for guilty pleas, voluntary surrender and strong humanitarian grounds, while repeated unlawful entry and other aggravating features justify upward adjustment; pre-trial detention credit is to be applied under s67A.

Hong Kong Case Law

HKSAR v. DEWAN MD HATEM

HKSAR v. NUR, JANNAH

HKSAR v. MEHMOOD ASIF

HKSAR v. ASJAD BAIG AND OTHERS

HKSAR v. KALEEM, MUHAMMAD

HKSAR v. USMAN BUTT AND ANOTHER

HKSAR v. SUNIL KOIRALA