區域法院（刑事）Deputy District Judge Kathie Cheung11/11/2018[2018] HKDC 1406
DCCC243/2018
A A
B B
DCCC 243/2018
C [2018] HKDC 1406 C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 243 OF 2018
F F
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G G
HKSAR
H v H
MOBEEN QURESHI (also known as KHAN WAQAR AHMED,
I I
KHAN HIDAYAT, HIDAYAT KHAN, HAQ MOBEEN UI,
AYYAZ RAFIQ, BAZMI MAHMOOD TARIQ, MOBWEM
J QURESHI, UI HAQ MOBEEN, WAQAR AHMED KHAN, J
MOBEEN UI HAQ, UL MOBEEN HAQ and TARIQ MOHMOOD
K BAZMI) K
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L L
M Before: Deputy District Judge Kathie Cheung M
Date: 12 November 2018
N N
Present: Mr Oscar Tan, Government Counsel, for HKSAR
O Miss Fung Sheung Kit, Carol, instructed by Stephen Lo & P O
Y Tse, assigned by the Director of Legal Aid, for the
P P
defendant
Q Offences: [1] Theft（盜竊罪） Q
R
[2] Breach of deportation order（違反遞解離境令） R
[3] Remaining in Hong Kong without the authority of the
S S
Director of Immigration after having landed unlawfully in
T Hong Kong（在香港非法入境後未得入境事務處處長授權 T
而留在香港）
U U
V V
-2-
A A
B B
C -------------------------------------- C
REASONS FOR SENTENCE
D D
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E E
1. The defendant pleaded not guilty to one count of “theft”,
F F
contrary to section 9 of the Theft Ordinance, Cap 210 (charge 1) but guilty
G to one count of “breach of deportation order”, contrary to section 43(1)(a) G
of the Immigration Ordinance, Cap 115 (charge 2) and one count of
H H
“remaining in Hong Kong without authority of the Director of Immigration
I after having landed unlawfully in Hong Kong”, contrary to section 38(1)(b) I
of the Immigration Ordinance (charge 3). Upon the prosecution’s
J J
application, charge 1 is to be left on court file and not to be proceeded with
K without the court’s leave. K
L L
Facts
M M
2. On 13 January 2018, the defendant was seen wandering in
N N
Central. He was intercepted and was unable to produce any proof of
O identity. O
P P
3. In subsequent video-recorded interview, the defendant
Q admitted under caution that he came from Pakistan and had been in Hong Q
Kong for 11 months. He came to Hong Kong illegally by ferry from
R R
Shenzhen. He came to Hong Kong to seek asylum.
S S
T T
U U
V V
-3-
A A
B B
4. Investigation revealed that the defendant is subject to a
C deportation order dated 27 July 1995 and he understood the order. He had C
been deported on 30 September 1995, 8 November 1997, 23 September
D D
2000 and 30 December 2011.
E E
Mitigation
F F
G 5. The defendant is aged 50. He previously worked as a reporter G
in Pakistan. He came to Hong Kong to seek asylum as he was attacked
H H
after he published articles revealing corruption of politicians in Pakistan.
I He recently married a Taiwanese lady and planned to move to Taiwan. The I
defendant has 16 previous conviction records, 3 relate to breach of
J J
deportation order and 1 relates to unlawful remaining in Hong Kong.
K K
6. In mitigation, it was submitted that he last committed a similar
L L
offence in 2009 and the court was urged to take into account the totality
M principle and impose concurrent sentences on the 2 charges. M
N N
Sentence
O O
7. The maximum sentence for charge 2 is 7 years’ imprisonment.
P P
For charge 3, the maximum sentence is a fine of HK$25,000 and 3 years’
Q imprisonment. Q
R R
8. For charge 2, the usual starting point after trial is 27 months’
S imprisonment (see HKSAR v Ta Dinh Son, CACC 348/2013). The S
sentence can be adjusted upward in case of a repeated offender. For the
T T
second to seventh commission of this offence, the starting point ranges
U U
V V
-4-
A A
B B
from 30 to 42 months’ imprisonment (see HKSAR v Jones Asri, CACC
C 345/2012 and HKSAR v Ta Dinh Son, CACC 348/2013). C
D D
9. For charge 3, the usual sentence after plea for a first offender
E is 15 months’ imprisonment. Again, the sentence can be adjusted upward E
in case of a repeated offender. The starting point after trial can range from
F F
27 to 30 months (see HKSAR v Bui Van Khai, CACC 175/2012 HKSAR v
G Pham Van Hung, CACC 14/2011 and HKSAR v Ta Dinh Son, CACC G
348/2013).
H H
I 10. Further, according to the Court of Appeal’s guideline, the I
sentences for the two charges should run concurrently.
J J
K 11. In respect of charge 2, since it is the defendant’s 4th conviction, K
I adopt a starting point of 3 years’ imprisonment. He is entitled to the usual
L L
one-third discount for his guilty plea. The sentence is therefore reduced to
M 2 years’ imprisonment. M
N N
12. For charge 3, although it is the defendant’s 2nd conviction, I
O consider a starting point of 22.5 months is appropriate. The sentence is O
reduced to 15 months for the defendant’s guilty plea.
P P
Q 13. Apart from the guilty plea, I do not see other valid mitigating Q
factor justifying further reduction of sentence.
R R
S S
T T
U U
V V
-5-
A A
B B
14. I order the sentences for the two charges to run concurrently
C and hereby sentence the defendant to a total sentence of 2 years’ C
imprisonment.
D D
E E
F F
G ( Kathie Cheung ) G
Deputy District Judge
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 243/2018
C [2018] HKDC 1406 C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 243 OF 2018
F F
----------------------------
G G
HKSAR
H v H
MOBEEN QURESHI (also known as KHAN WAQAR AHMED,
I I
KHAN HIDAYAT, HIDAYAT KHAN, HAQ MOBEEN UI,
AYYAZ RAFIQ, BAZMI MAHMOOD TARIQ, MOBWEM
J QURESHI, UI HAQ MOBEEN, WAQAR AHMED KHAN, J
MOBEEN UI HAQ, UL MOBEEN HAQ and TARIQ MOHMOOD
K BAZMI) K
----------------------------
L L
M Before: Deputy District Judge Kathie Cheung M
Date: 12 November 2018
N N
Present: Mr Oscar Tan, Government Counsel, for HKSAR
O Miss Fung Sheung Kit, Carol, instructed by Stephen Lo & P O
Y Tse, assigned by the Director of Legal Aid, for the
P P
defendant
Q Offences: [1] Theft（盜竊罪） Q
R
[2] Breach of deportation order（違反遞解離境令） R
[3] Remaining in Hong Kong without the authority of the
S S
Director of Immigration after having landed unlawfully in
T Hong Kong（在香港非法入境後未得入境事務處處長授權 T
而留在香港）
U U
V V
-2-
A A
B B
C -------------------------------------- C
REASONS FOR SENTENCE
D D
--------------------------------------
E E
1. The defendant pleaded not guilty to one count of “theft”,
F F
contrary to section 9 of the Theft Ordinance, Cap 210 (charge 1) but guilty
G to one count of “breach of deportation order”, contrary to section 43(1)(a) G
of the Immigration Ordinance, Cap 115 (charge 2) and one count of
H H
“remaining in Hong Kong without authority of the Director of Immigration
I after having landed unlawfully in Hong Kong”, contrary to section 38(1)(b) I
of the Immigration Ordinance (charge 3). Upon the prosecution’s
J J
application, charge 1 is to be left on court file and not to be proceeded with
K without the court’s leave. K
L L
Facts
M M
2. On 13 January 2018, the defendant was seen wandering in
N N
Central. He was intercepted and was unable to produce any proof of
O identity. O
P P
3. In subsequent video-recorded interview, the defendant
Q admitted under caution that he came from Pakistan and had been in Hong Q
Kong for 11 months. He came to Hong Kong illegally by ferry from
R R
Shenzhen. He came to Hong Kong to seek asylum.
S S
T T
U U
V V
-3-
A A
B B
4. Investigation revealed that the defendant is subject to a
C deportation order dated 27 July 1995 and he understood the order. He had C
been deported on 30 September 1995, 8 November 1997, 23 September
D D
2000 and 30 December 2011.
E E
Mitigation
F F
G 5. The defendant is aged 50. He previously worked as a reporter G
in Pakistan. He came to Hong Kong to seek asylum as he was attacked
H H
after he published articles revealing corruption of politicians in Pakistan.
I He recently married a Taiwanese lady and planned to move to Taiwan. The I
defendant has 16 previous conviction records, 3 relate to breach of
J J
deportation order and 1 relates to unlawful remaining in Hong Kong.
K K
6. In mitigation, it was submitted that he last committed a similar
L L
offence in 2009 and the court was urged to take into account the totality
M principle and impose concurrent sentences on the 2 charges. M
N N
Sentence
O O
7. The maximum sentence for charge 2 is 7 years’ imprisonment.
P P
For charge 3, the maximum sentence is a fine of HK$25,000 and 3 years’
Q imprisonment. Q
R R
8. For charge 2, the usual starting point after trial is 27 months’
S imprisonment (see HKSAR v Ta Dinh Son, CACC 348/2013). The S
sentence can be adjusted upward in case of a repeated offender. For the
T T
second to seventh commission of this offence, the starting point ranges
U U
V V
-4-
A A
B B
from 30 to 42 months’ imprisonment (see HKSAR v Jones Asri, CACC
C 345/2012 and HKSAR v Ta Dinh Son, CACC 348/2013). C
D D
9. For charge 3, the usual sentence after plea for a first offender
E is 15 months’ imprisonment. Again, the sentence can be adjusted upward E
in case of a repeated offender. The starting point after trial can range from
F F
27 to 30 months (see HKSAR v Bui Van Khai, CACC 175/2012 HKSAR v
G Pham Van Hung, CACC 14/2011 and HKSAR v Ta Dinh Son, CACC G
348/2013).
H H
I 10. Further, according to the Court of Appeal’s guideline, the I
sentences for the two charges should run concurrently.
J J
K 11. In respect of charge 2, since it is the defendant’s 4th conviction, K
I adopt a starting point of 3 years’ imprisonment. He is entitled to the usual
L L
one-third discount for his guilty plea. The sentence is therefore reduced to
M 2 years’ imprisonment. M
N N
12. For charge 3, although it is the defendant’s 2nd conviction, I
O consider a starting point of 22.5 months is appropriate. The sentence is O
reduced to 15 months for the defendant’s guilty plea.
P P
Q 13. Apart from the guilty plea, I do not see other valid mitigating Q
factor justifying further reduction of sentence.
R R
S S
T T
U U
V V
-5-
A A
B B
14. I order the sentences for the two charges to run concurrently
C and hereby sentence the defendant to a total sentence of 2 years’ C
imprisonment.
D D
E E
F F
G ( Kathie Cheung ) G
Deputy District Judge
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V