HKSAR v. Jewel

HCMA 160/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 160 OF 2014

(ON APPEAL FROM STCC 4565 OF 2013)

______________________

_______________

J U D G M E N T

_______________

1.  This is an appeal against a sentence of 18 months and 2 weeks’ imprisonment.  It was passed following a conviction after trial of an offence of taking employment while being a person in respect of whom a removal order was in force.  That was contrary to sections 38AA(1)(b) and 38AA(2) of the Immigration Ordinance.

2.  The facts of the case were simple.  The appellant was doing some odd-job work and was observed to be doing it and the magistrate did not believe he was there to stay there and found that he was there to work picking through second-hand clothes.

3.  The magistrate followed the well-known case of HKSAR v Usman Butt [2010] 5 HKLRD at page 452.  That case set a tariff of 15 months after a plea of guilty for a standard of offence under this section.  This was a conviction after trial so the magistrate grossed that up and took a starting point of 22½ months’ imprisonment.

4.  The appellant had been in Hong Kong since November of 2006 at least when a removal order was made against him.  He had spent 4 months in administrative detention and in the usual way the magistrate deducted that from his sentence, from his starting point, and that resulted in the sentence of 18 months and 2 weeks.

5.  The appellant addresses me very nicely but unfortunately for him he is unable to point to any exceptional circumstances that would justify departing from the route to sentence that the magistrate had followed.  In the absence of any exceptional circumstances justifying departure from the guidelines, I am bound in the same way. Accordingly, I shall have to dismiss this appeal.