HKSAR v. SITI MARIANNA AND ANOTHER

HCMA413/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 413 OF 2011

(ON APPEAL FROM STCC2145 OF 2011)

---------------------------

-------------------------

J U D G M E N T

-------------------------

1.  There are two appellants in this matter. They were respectively the 1^st and 2^nd defendants in proceedings STCC2145 of 2011 at the Shatin Magistrates’ Court. It is therefore convenient to deal with their appeals together.

2.  Each of the appellants was charged with the same offence, namely “taking employment while being a person in respect of whom a removal order was in force”.  This is an offence contrary to section 38AA(1)(b) of the Immigration Ordinance, Cap. 115.

3.  On 16 May of this year, each of the appellants pleaded guilty to that charge and was sentenced to 13 months’ imprisonment.  In each case, the magistrate took a starting point for sentence based on the observations of the Court of Appeal in HKSAR v Usman Butt & another in [2010] 5 HKLRD 452.  In that judgment the Court of Appeal confirmed that the usual sentence of 15 months’ imprisonment imposed for this offence took into account a plea of guilty.  That was the starting point adopted in the case of each appellant. 

4.  In addition, the magistrate discounted that starting point by a further 2 months in the case of each appellant to allow for the period that they were detained subsequent to the making of removal orders against each of them and their release by the Immigration Department on recognizance.  The magistrate adopted this course because that period of detention would not be counted pursuant to section 67A(1A) of the Criminal Procedure Ordinance, Cap. 221. 

5.  Each of the appellants is an Indonesian national who originally came to Hong Kong legally.  The 1^st appellant came to Hong Kong towards the end of 2008 on a 30-day visitor visa.  The 2^nd appellant came as a domestic helper, pursuant to a Contract of Employment which expired in September 2008.

6.  The 1^st appellant overstayed her visa and was ultimately arrested in January 2011.  On 23 March 2011 she was served with a removal order and released on recognizance.  

7.  In the case of the 2^nd appellant she was arrested in November 2009.  On 14 January 2010 she was served with a removal order and was also released on recognizance in February 2010.  Those removal orders were not immediately enforced because I am advised that each of the appellants has applied to be a torture claimant.

8.  Turning now to the offence with which each of the appellants was convicted, the facts before the magistrate were as follows.  On 12 May 2011 both appellants were seen by Immigration Department officers employed at a restaurant in Mei Foo Sun Chuen in Kowloon.  Enquiries revealed that both of the appellants had previously been convicted of an offence of “breach of condition of stay”, contrary to section 41 of the Immigration Ordinance, Cap. 115 and had been sentenced to short periods of imprisonment.

9.  The present offences were committed after their release from those terms of imprisonment. 

10.  Each of the appellants now asks that the sentences imposed be reduced as being too severe.  Each of their respective submissions is to the effect that they were forced to take up employment because the Social Welfare Department had not provided sufficiently for them.  It suffices to say that in my opinion that is not a proper basis upon which to reduce their sentences. 

11.  The term of imprisonment imposed was in all of the circumstances of each of the appellants entirely proper.  The appeals against sentence are dismissed.