HKSAR v. CHANDRA BAHADUR RAUT

HCMA 216/2021

[2021] HKCFI 3110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 216 OF 2021

(ON APPEAL FROM STCC 1289 OF 2021)

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JUDGMENT

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Introduction

1.  On 23 April 2021, the defendant pleaded guilty before Pang Leung-ting, Magistrate, of taking employment while being a person in respect of whom a removal order is in force contrary to ss38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap 115.  He was sentenced to a term of imprisonment of 15 months, which he is currently serving.  By reason of his Notice of Appeal dated 29 April 2021, he now seeks to appeal his sentence on the basis that it was too severe.

Facts of the Case

2.  The appellant admitted that he was the subject of a removal order dating back to 2014 which had never been discharged.  By so doing he accepted that he was prohibited from taking up employment of any kind whether paid or unpaid.  He was seen to be pushing a trolley outside of a vegetable shop in Wan Fung Street, Wong Tai Sin and by reason of his plea to being employed therein.

Background of the Appellant

3.  The appellant is 41 years of age, a resident of Nepal and a Form 8 holder.  His family remain in Nepal.  He suffers from high cholesterol and back pain.  In mitigation, defence counsel submitted that he was under financial pressure to support his family in Nepal. He said little more than that[1].

Reasons for Sentence

4.  In sentencing the appellant the magistrate relied upon HKSAR v Usman Butt and Another HCMA 70/2010 under which the Court of Appeal stated an appropriate sentence for such an offence upon a plea of guilty would be 15 months’ imprisonment.  There were no other mitigating factors which would warrant any reduction from that point.

Grounds of Appeal against Sentence

5.  There were no grounds of appeal.  The appellant submitted that he wished to have a period of 43 days deducted from his sentence. These were spent at CIC in detention as a result of overstaying.  He accepted that this was a wholly different reason from the offence to which he had pleaded guilty and was now serving a period of imprisonment.

Conclusion

6.  The magistrate correctly adopted the appropriate tariff for this offence and, in the absence of any notable mitigation, he applied that tariff.  He cannot be faulted.  The period of administrative detention in CIC was wholly within the purview of the Director of Immigration and had no connection with the criminal offence to which the appellant pleaded guilty.  The sentence was entirely proper.

7.  This appeal is dismissed.