HKSAR v. MASUM

HCMA 513/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 513 OF 2014

(On appeal from KCCC No 1738 of 2014)

_______________________

BETWEEN

HKSAR Respondent

and

MASUM Appellant
_______________________

Before: Hon Zervos J in Court

Date of Hearing: 5 December 2014
Date of Judgment: 5 December 2014

________________________

J U D G M E N T

________________________

1. The appellant appeals against the sentences imposed on him upon being convicted after trial of one charge of possession of the saleor for any purpose of trade or manufacture goods to which a forged trademark was applied (Charge 1) and one charge of taking employmentwhile being a person in respect of whom a removal order was in force (Charge 2).

2. The deputy magistrate, Ms Vennie Chiu Wai‑yee, sitting at Kowloon City Magistracy, sentenced the appellant to concurrent termsof imprisonment of 8 months on Charge 1 and 22½ months on Charge 2.

3. The brief facts relating to the two offences were that on 29 October 2013, the appellant brought three foreigners to premises inTsim Sha Tsui where there was a large quantity of counterfeit goods. The goods consisted of watches, belts, wallets and bags bearingforged trademarks of well‑known and high‑end brand names. The appellant had the keys to the premises. The magistrate explainedthat she was satisfied that the appellant was in possession of the goods for sale and that he took the three foreigners to the premisesas part of his employment.

4. The magistrate noted that the appellant was 34 years of age and had a clear record. He had come to Hong Kong from Bangladesh in2005 and was a torture claimant. He was receiving welfare support while awaiting the outcome of his torture claim.

5. The magistrate addressed each charge in turn when considering an appropriate sentence. On Charge 1, she considered that a deterrentsentence was warranted given the quantity of goods involved, the scale of the operation and the damage it would cause to Hong Kong’scommercial reputation. She explained that she found that the counterfeit goods to be of high quality as evidenced by their labellingand packaging. She considered the operation to be fairly sophisticated in that someone other than the appellant owned or rentedthe premises and hired others including the appellant to bring potential customers to the premises. Accordingly, the magistrateimposed a term of imprisonment of 8 months on this charge.

6. On Charge 2, the magistrate was guided by the Court of Appeal decision in HKSAR v Usman Butt [2010] 5 HKLRD 452 where it held that an appropriate sentence for an offence of taking employment after entering unlawfully and remaining without authorityin Hong Kong, or being subject to a removal or deportation order upon a plea of guilty was 15 months’ imprisonment. On that basis,the magistrate imposed a term of imprisonment of 22½ months as the appellant had been found guilty after trial.

7. The magistrate then took into account the totality principle and bore in mind that the two offences arose from the same incidentand therefore made the sentences on each charge concurrent with each other.

8. The issue as I see it is whether the sentence imposed on Charge 2 was appropriate for the wrongdoing that had been committed by theappellant. It is clearly apparent that the magistrate was guided by Usman Butt which came about in order to address the divergences of sentences that were imposed in the magistrate’s courts against personswho had been convicted for this offence. The Court of Appeal applied the sentencing tariff in R v So Man King [1989] 1 HKLR 142 where a sentence of 15 months’ imprisonment was adopted after a guilty plea for the offence of a person unlawfully remaining inHong Kong. The Court explained that this was done to bring about greater consistency between sentences for wrongdoing in relationto illegal immigration. The Court observed that the deterrent sentence of 15 months’ imprisonment ensured that illegal immigrationwould become less attractive with the risk of long jail term. The Court specifically refrained from giving detailed guidelines onhow the sentence may be adjusted and adopted what had been said in So Man King:

“The guideline already allows for the almost inevitable plea of guilty, but voluntary surrender to the authorities should warranta substantial discount, and strong humanitarian considerations should always be honoured, even to the extent sometimes of suspendingwhatever prison sentence is otherwise though appropriate. On the other hand, the Court should take into account, by upward adjustment,any previous unlawful entry, whether resulting in prosecution or not, and other circumstances which may aggravate the offence, suchas the actual use of a forged or other person’s identity card to obtain some particular benefit.”

9. The appellant submitted that he has an ill mother in Bangladesh and asked that he be treated leniently on humanitarian grounds. I find no substance in his expressed concern about his mother as he left his home some ten years ago and it seems his mother’shealth has only now become an issue as a result of the prison sentence he had received for these offences. In any event, he hassiblings in Bangladesh who can look after his mother whose ill health was generally described by him as kidney problems.

10. The magistrate followed the sentencing tariff of Usman Butt and on my appraisal of the factual circumstances of the case and the personal circumstances of the appellant, there is no basis tointerfere with the sentence imposed. Accordingly, the appeal against sentence is dismissed.

(Kevin Zervos)
Judge of the Court of First Instance
High Court

Mr Prakash L Daryanani, SPP of Department of Justice, for HKSAR

The appellant in person