HKSAR v. SIRIWANISKUL NANNAPARTH, THAIBAMRUNG NATTHANAPHAT

HCMA 101/2021

[2021] HKCFI 1856

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 101 OF 2021

(ON APPEAL FROM ESCC 278 OF 2021)

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J U D G M E N T

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1.  On 6 February 2021, the appellant pleaded guilty to one count of “Establishing a business while being a person in respect of whom a removal order is in force”, contrary to section 38AA(1)(b) of the Immigration Ordinance, Cap.115.[1]

2.  After hearing the mitigation made by the legal representative on behalf of the appellant, the magistrate[2] imposed a sentence of 15 months’ imprisonment on the appellant[3].

3.  The appellant now appeals against her sentence.

Facts of the case

4.  The appellant admitted the following facts[4]. On 4 February 2021 a police officer was deployed to conduct an anti-vice decoy operation at a room at Walden Hotel, Wanchai.  The appellant answered the door and offered to provide a 30-minute sex service to the decoy officer for HK$600.  The operation turned overt after payment was made to the appellant.  The appellant presented her Form 8 for inspection of her identity.

5.  Upon enquiry, it was revealed that the Immigration Department had issued a removal order against her on 20 October 2020.  The appellant was arrested for the offence of establishing a business while being a person in respect of whom a removal order is in force.

6.  The appellant admitted under caution that she worked at the offence location as a sex worker and had offered sex service to the decoy officer for HK$600.

Background of appellant

7.  The appellant was aged 22 years at the time of the offence.  She had one previous conviction of “Breach of condition of stay” in August 2020 which she was sentenced to 2 months’ imprisonment.  A removal order was issued against her.  In mitigation, it was submitted on the appellant’s behalf that she committed the offence as she was in need of money for the medical treatment of her mother in Thailand who suffered from breast cancer and her younger sister’s education.[5]

Reasons for sentence

8.  In sentencing the appellant, the magistrate did not take into account the appellant’s previous conviction.  After considering the sentencing guideline laid down in HKSAR v Usman Butt [2010] 5 HKLRD 452 he sentenced the appellant to a term of 15 months’ imprisonment.  He did not find there to be any other mitigating factors or humanitarian factors to justify a departure from Usman Butt.

Grounds of appeal against sentence

9.  The appellant relied on the general ground of appeal in that her sentence was too severe.

Conclusion

10.  The magistrate correctly adopted the tariff as laid down in Usman Butt.  There were no mitigating factors to reduce the sentence from the relevant starting point.  The sentence is entirely proper.

11.  There is no merit in this appeal and the appeal against sentence is dismissed.