HKSAR v. SHAFIA

HCMA 381/2019

[2020] HKCFI 687

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 381 OF 2019

(ON APPEAL FROM WEST KOWLOON MAGISTRACY
CASE NO WKCC 2634 OF 2019)

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J U D G M E N T

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1.  The appellant pleaded guilty before a magistrate to one charge of “Prohibition of taking employment” contrary to section 38AA(1)(b) of the Immigration Ordinance, Cap 115. She was sentenced to 15 months’ imprisonment.

2.  The appellant appealed against sentence.

3.  In the magistracy, the appellant was represented by Duty Lawyer. Here, she was unrepresented and appeared for herself.

Ground of appeal

4.  On Form 102, the only appeal ground is that general ground printed on the form itself namely, that the sentence was too severe.

Facts admitted by the appellant

5.  The admitted facts are summarized in the Reasons for Sentence as follows:

“2. The defendant entered Hong Kong on 14 Oct 2015 and was permitted to stay in Hong Kong for employment as a domestic helper. Her employment contract was prematurely terminated but she did not depart in two weeks’ time and had overstayed in Hong Kong since 7 June 2016. On 13 Feb 2017, she surrendered to Immigration Department for having overstayed and was released on recognizance on 15 Feb 2017 and remained in Hong Kong under the recognizance conditions. She had signed to confirm that she was briefed not to take up employment whether paid or unpaid on 15 Feb 2017. A removal Order was issued against defendant on 24 Jan 2018.

3. At 2002 hours on 12 May 2018 the defendant was found working at the rear lane of 58-60 Tai Nan Street. Enquiry with the staff of Good Fit Chiu Zhou Restaurant revealed that the defendant had been employed since 2017, with monthly salary $14,000. Defendant admitted under caution that she used the ID card issued to her pursuant to her domestic helper contact in 2013 to apply the job at the Restaurant.”

The magistrate’s reasons for sentencing the appellant

6.  The magistrate’s explanation of how she sentenced the appellant is stated in the Reasons for Sentence as follows:

“6. The Court of Appeal in HCMA 70/2010 was with the view that ‘a sentence of 15 months’ imprisonment (upon plea) is required to be applied in a section 38AA offence both in respect of (1)(a) and (1)(b)” for the following reasons:

1)  SO Man King has proven to be effective;

2)  The present situation justifies the same approach;

3)  There should he consistency between sentences under section 38(1) and section 38AA offences;

4)  Comparison with sentences imposed for breach of conditions of stay is not appropriate;

5)  The possibility of further prosecution is not a ground for departing from So Man King;

6)  Humanitarian considerations have been addressed.

7.  The defendant was briefed not to take up employment whether paid or unpaid on 15 Feb 2017. Further, a removal Order was further issued against defendant on 24 Jan 2018. Yet she continued to take up employment until she was arrested on 12 May 2018. The Court of Appeal guideline of 15 months’ imprisonment was applicable to the present case, and I did not consider there to be any mitigation factor that called for reduction. Upon the defendant own plea and her clear record at time of the offence, she was sentenced to 15 months accordingly.

8.  Although the defendant was in default of police reporting and committed KCCC 1686/2019 while absconding, taking into account of the totality principle, in particular the length of her sentence in KCCC 1686/2019, and the overall culpability, I considered the sentence of both cases should run partly concurrent and partly consecutive making a total of 20 months.

Order

9.  15 months’ imprisonment; 5 months run consecutive with KCCC 1686/2019.”

Appellant’s submissions

7.  The appellant said simply that she wanted to be released early.

Summary of the respondent’s submissions

8.  Mr Joe Hui, PP, representing the respondent adopted the written submissions written by Mr Pierre Lui, SPP.

9.  Respondent submitted that the 15 months’ sentence imposed was entirely appropriate and in line with the Court of Appeal authority of HKSAR v Usman Butt and Others [2010] 5 HKLRD 452.

10.  Respondent told the court more about the other case KCCC 1686/2019 in which the appellant got convicted of two charges and was sentenced to 15 months overall; that case involves the charges of (1) obtaining pecuniary advantage by deception and (2) taking employment while a removal order was in force ie the same offence as in the present case; that the appellant was awarded a sentence of 2 months for the first offence and 15 months for the second offence, to run concurrently with each other. Respondent informed the court that those offences took place more than one year after the present offence (though they were dealt with first in the magistracy).

11.  Respondent re-emphasized the point that the offences subject of KCCC 1686/2019 were committed while the appellant was on bail for the present case and submitted in conclusion that the present sentence (presumably that includes the consecutive order as to 5 months) is neither wrong in principle nor manifestly excessive.

Consideration

12.  Obviously, there is nothing wrong in the magistrate imposing a sentence of 15 months upon plea of the appellant. Nor do I see anything wrong or excessive in the overall sentence of 20 months when the case of KCCC 1686/2019 was brought into consideration.

Conclusion

13.  For the above reasons, the appeal against sentence is dismissed. I confirm the sentence (including the consecutive order as to 5 months) imposed by the magistrate.