HKSAR v. MD KAMAL

HCMA 13/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 13 OF 2011

(ON APPEAL FROM FLCC 2563/2010)

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BETWEEN

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REASONS FOR JUDGMENT

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1.  The Appellant pleaded guilty to one charge of taking prohibited employment, contrary to section 38AA(1)(a) of the Immigration Ordinance, Cap. 115. He was sentenced to 15 months’ imprisonment and appealed against the sentence.

2.  The facts that he admitted show that police watched him and two other men moving a roll of steel inside the storage area of Lo Bo Sing Company.  When his identity was checked the Appellant produced a copy of a recognizance form issued by the Immigration Department.  The Appellant was not permitted to take up any employment.

3.  The Appellant had one previous conviction for Breach of Condition of Stay, in September 2006.  The Removal Subdivision of the Hong Kong Immigration Department confirmed that a Removal Order had been made against the Appellant on 11 October 2006, and he had claimed asylum from the Hong Kong Government.  He had been released on recognizance on 4 June 2007, pending investigation of his claim and/or removal arrangements.

4.  Because he was prohibited from taking employment he had been aided by International Social Services.  He claimed that he had no money to pay for utilities and his landlord required payment of $5,000.  He had asked the proprietor of Lo Bo Sing Company to employ him – the proprietor had been charged as D1, for employing a person who was legally unemployable.

5.  The Appellant was a Bangladeshi national, aged 36, a businessman in Bangladesh where his parents were living.  The only mitigation was the Appellant’s plea of guilty.  The Magistrate sentenced him to 15 months’ imprisonment which was the guideline sentence for the offence.

6.  The Appellant said it was because his landlord insisted on his paying the utilities charges that he had been forced to take up prohibited employment.  He claimed the Duty Lawyer had told him that there was a new law which meant that he should be sent to prison for 2-3 months only, but was unable to give further details.  He sought leniency, told the court he would not offend in this manner again and, despite this being a further conviction, said he respected Hong Kong law.

7.  The Magistrate considered HKSAR v Usman Butt [2010] 5 HKLRD 452. There the Court of Appeal reviewed sentencing precedents and sentencing practice for offences of this nature and held that the proper sentence for offences under both section 38AA(1)(a) and section 38AA(1)(b) was 15 months which already allowed for a plea of guilty.

8.  There had been no voluntary surrender to the authorities, nor were strong humanitarian considerations advanced which might have warranted a lesser sentence.  The sentence imposed was appropriate and in accordance with the guideline.

9.  The appeal against sentence was dismissed.