HKSAR v DWI SAFITRI AND ANOTHER

HCMA 210/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 210 OF 2012

(ON APPEAL FROM STCC 1190 OF 2012)

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REASONS FOR JUDGMENT

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1. Each appellant pleaded guilty to a charge of ‘Establishing or Joining in any business while being a person in respect of whom a Removal Order is in force’. Each of them was sentenced to 13 months imprisonment on 7 March 2012. The suspended sentence of each appellant in another case was also activated to run consecutively[1]. They now appeal against the sentence.

2. On 5 March 2012, officers of the Immigration Department observed that the two appellants were dealing with some takeaway food in a residential flat in Room E, 1/F, No 51, Lion Rock Road, Kowloon. They later raided the flat and found large amount of cooked food and packaging material.  Under caution, the 1^st appellant admitted that she cooked, packed and delivered the food to customers for a monthly salary of $3,000.  The 2^nd appellant admitted that she had established the takeaway food business for about a year.  She was responsible for taking orders, cooking, packing and delivering food to customers. She earned about $6,000 per month.

3. The 1^st appellant overstayed in Hong Kong after her domestic helper contract expired on 13 December 2009.  She was arrested for overstaying and was sentenced to 4 weeks imprisonment suspended for 3 years in March 2010.  A removal order was served upon her on 14 April 2010.  She later lodged a torture claim and was released on recognizance since 6 May 2010 pending the result.

4. The 2^nd appellant overstayed in Hong Kong after the termination of her domestic helper contract in June 2009.  She was arrested for overstaying in March 2010 and was sentenced to 4 weeks imprisonment suspended for 3 years.  A removal order was served upon her on 22 April 2010.  She lodged a torture claim and was released on recognizance pending investigation since 30 April 2010.  Her claim was subsequently refused.

5. Relying on the Usman Butt case[2], the principal magistrate took the starting point of 15 months imprisonment for each appellant.  He deducted the period of administrative detention before each appellant was released on recognizance.  Each appellant was sentenced to 13 months imprisonment. However, the principal magistrate activated the suspended sentence of 4 weeks imprisonment and ordered it to be served consecutively.  Each appellant had to serve a total of 13 months and 4 weeks imprisonment.

6. Both appellants pleaded for leniency.  They thought the sentence was too long.  They committed the offence as they needed money to support themselves in Hong Kong.

7. During the appeal, the 1^st appellant informed this court that she had not turned up for the torture claim interview. However, she would like to cancel the claim as she wanted to leave as early as possible.  She pleaded for leniency.  The 2^nd appellant admitted that she established the business to support herself.

8. In assessing the sentence for each appellant, the principal magistrate applied the right principle as set out in the above authority.  The sentence of each appellant is appropriate.

9. As to the suspended sentence, I agree with the principal magistrate that it should be activated.  They should be served consecutively.

10. There is no substance in the appeals.  I dismiss them accordingly.