HKSAR v. LAKHWINDER SINGH

HCMA 273/2018

[2018] HKCFI 2601

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 273 OF 2018

(ON APPEAL FROM STCC 2777 OF 2017)

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REASONS　FOR JUDGMENT

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1.  The appellant was convicted after trial by a magistrate[1] of one count of “taking employment while being a person in respect of whom a removal order is in force, contrary to sections 38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap. 115. He was sentenced to 22 months and 2 weeks’ imprisonment.

2.  The appellant filed Notices of Appeal against Conviction and Sentence to appeal against both his conviction and sentence.

3.  At the hearing of the appeal the appellant confirmed his abandonment of his appeal against conviction as indicated in his letter received by the court on 29 October 2018. 

4.  Upon the appellant’s abandonment, his appeal against conviction was dismissed.  He pursued his appeal against sentence only. 

5.  At the hearing I dismissed the appeal against sentence.  I now hand down my reasons for doing so. 

Facts of the case

6.  In the magistrate’s statement of finding he found that on the 22 July 2017 at around 9.45 am, the appellant was seen by a police officer (PW1) pushing a trolley with bricks and stones from outside of the second floor of a two storey village house, through a working footbridge, to an open area next door.  The village house was under construction at Nam Ping Wai Village, Sai Kung.  The appellant was then seen pouring the bricks and stones in the open area.  PW1 intercepted the appellant and found that he was a recognizance holder.  It was PW1’s observation that the appellant clothes were dirty.

7.  It was an admitted fact that a removal order was issued against the appellant in April 2015 and it remained in force against him at the material time. 

8.  The magistrate found the appellant was working as a labourer on a construction site as an odd job-worker and was under employment. 

Reasons for sentence

9.  The magistrate took into account that the appellant was 40 years old and his family were back home in India. 

10.  In sentencing the appellant the magistrate considered the sentencing guideline in HKSAR v Usman Butt & Another [2010] 5 HKLRD 452 and sentenced the Appellant to 22 months and 2 weeks’ imprisonment.

Grounds of appeal against sentence

11.  In the appellant’s letter referred to above he submitted that he was sorry for wasting the court’s time before the magistrate. He submitted that it was his intention to plead guilty, however he pleaded not guilty to the charge because the interpreter and his lawyer had misguided him. In addition, he asked for mercy as he had a wife and child. 

12.  The appellant submitted that his sentence was manifestly excessive and his sentence should be reduced.

Discussion

13.  The appellant entered a plea of not guilty at his trial.  His intention to plead guilty is in stark contrast to the appellant’s evidence at trial.  His evidence, which the magistrate rejected, was that he had only pushed a trolley containing bags (not bricks and stones) away as it was blocking the entrance of a public toilet which he wanted to enter.  As reflected in the appellant’s evidence he denied he was working or was under employment. 

14.  His request for this court to now consider that he had intended to plead guilty at the outset has no merit.  He was convicted after trial.  It is too late now to turn the clock back and claim that he intended to plead guilty and thus seek to benefit from a one-third discount from the starting point or a reduced sentence. 

15.  Since the appellant was convicted after trial the magistrate correctly applied the tariff as laid down in Usman Butt & Another.  There was and there are no mitigating factors to reduce the sentence from the relevant starting point. 

16.  For the reasons aforesaid, the appeal against sentence was dismissed.