HKSAR v. ADHIKARI SUSHIL

HCMA 342/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 342 OF 2015

(ON APPEAL FROM STCC 1309 OF 2015)

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JUDGMENT
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1.  The appellant appeals against his sentence of 13 months’ imprisonment imposed on him[1] upon his plea of guilty to one count of taking employment while being a person in respect of whom a removal order is in force contrary to section 38AA(1)(b) and (2) of the Immigration Ordinance Cap 115.

Brief facts

2.  I adopt the facts as helpfully set out by the deputy magistrate[2] in her reasons for sentence. 

3.  On 27 October 2013, the appellant (D1 at the hearing) sneaked into Hong Kong and was arrested by the police. He was subsequently handed over to the Immigration Department for investigation. On 29 November 2013, after being administratively detained for 34 days, he was released on recognizance. On 18 December 2013, a removal order against D1 was issued.  The same was served on him on 7 January 2014.  The removal order remained in force against D1 and he was prohibited from taking up any employment in Hong Kong.

4.  At around 1825 hours on 4 May 2015, officers of the Immigration Department conducted an operation at a restaurant known as “WASHIZAWA’s KITCHEN MICHI” (“the Restaurant”) located in Minden Avenue, Tsim Sha Tsui.  D1 was intercepted at the kitchen of Restaurant and was found standing near a sink while washing the sink at the material time. 

5.  Under caution at the scene, D1 admitted that he was working in the Restaurant and was responsible for washing dishes.  He had been working there for a month at 10 hours per day with an hourly wage of HK$36. He was paid by cash every day.

6.  On 5 May 2015, a cautioned statement was taken from D1. He further admitted that he had met D2 through an unknown female. He started to work as a part-time worker at the Restaurant since March 2015.  His working hours was from 1100 hours to 0000 hours.  D1 also admitted that he was aware that he was not allowed to take up any employment in Hong Kong. 

7.  For the sake of completeness, the Restaurant was held by a company named “Eagles Fortune Limited” in which D2 was the sole director.  D2 was also located at the scene on 4 May 2015.  Under caution, he admitted that he was responsible for hiring.  D2 was found, on an unknown day in March 2015, to have entered into a contract of employment to employ D1 without first inspecting his travel document.

Mitigation

8.  The appellant was legally represented[3] before the magistrate.  The appellant is an asylum seeker living in Hong Kong from Nepal.  He is 21 years of age and of clear record.  He was worried about his family as he could not contact them after the recent earthquake in Nepal.

9.  He had spent 34 days in administrative detention.  He was willing to give evidence against his co-accused however this never materialised as he was informed that his co-accused was going to plead guilty.

The magistrate’s reasons for sentence

10.  The magistrate cited the court of appeal case of HKSAR v Usmann Butt & Another [2010] 5 HKLRD 452 which laid down the guideline sentence of 15 months’ imprisonment upon a plea of guilty in relation to the present offence.

11.  In the present case she adopted 15 months’ imprisonment upon the appellant’s plea of guilty.  She discounted 1 month for the time the appellant had spent in administrative detention reducing the term to 14 months’ imprisonment. 

12.  She recognized that a defendant’s willingness to give evidence against his co-accused was not a mitigating factor citing paragraph 17 of HKSAR v Chan Yip-chi, CACC 153/2001, however considering the appellant’s relatively young age and the fact that the defendant was prepared to give evidence against his co-accused she gave a further 1 month discount. 

13.  She found there were no other strong humanitarian grounds and mitigating factors, and sentenced the appellant to 13 months’ imprisonment.

Grounds of appeal

14.  The only ground of appeal in the Notice of Appeal in Form 102 was that his sentence was too severe. 

15.  At the hearing of this appeal the appellant submitted his handwritten submissions requesting for leniency.  He explained that the reason he worked was to pay the medical expenses of his mother and to pay for his rent in Hong Kong as the International Social Services did not provide him with those funds.  He expressed remorse and indicated that he would go back to Nepal to be with his parents once he had served his sentence.  He also repeated what was said in mitigation before the magistrate.

Discussion

16.  The issue on this appeal is whether the sentence imposed was excessive.

17.  The sentence of 15 months’ imprisonment after plea accords with the sentencing tariff for the present offence: see HKSAR v Usman Butt.  The matters raised by the appellant are not mitigating factors warranting a reduction in sentence.  The magistrate was generous in giving the appellant the reduction she did in his sentence. 

18.  In the circumstances, the sentence was not manifestly excessive and the appellant’s appeal against sentence is dismissed.