HKSAR v. KUMAR GNANASEKAR

HCMA 330/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 330 OF 2011

(ON APPEAL FROM STCC 2062 OF 2012)

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J U D G M E N T

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1. This is an appeal against a sentence of 11 months’ imprisonment.  It was passed for the offence 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.  The appellant pleaded guilty, and the magistrate adopted as a starting point a sentence of 15 months’ imprisonment following the well‑known case of HKSAR v Usman But. That case laid down the sentencing guideline for such an offence.

2. The magistrate passed the sentence of 11 months because he deducted the time that the appellant had spent in administrative detention.

3. To persuade me to alter that sentence and depart from the guideline would need something exceptional.  Nothing exceptional exists in this case.  The appellant before me today talks of the difficulties of living in Hong Kong which pressed him into taking the work.  He promised me that he would never do it again, and he pleads for mercy.  He made his submissions briefly, but very nicely.

4. I regret to say that those submissions, whilst I accept them, do not make the case exceptional.

5. Accordingly, I am bound to dismiss the appeal.