HKSAR v. KINANTI

HCMA 328/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 328 OF 2004

(ON APPEAL FROM KCCC 3828/2004)

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J U D G M E N T

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1. This Appellant pleaded guilty in the Magistracy to one charge of Breach of Condition of Stay, contrary to s. 41 of the Immigration Ordinance, Cap. 115.She appeals against the sentence of 3 months' imprisonment imposed on her.

2. The Appellant came to work in Hong Kong on 12 September 2000 as a domestic helper. She was permitted to remain until 30 September 2004 or two weeks after termination of contract whichever was earlier. The Appellant's employer terminated her contract prematurely on 11 November 2002 and she overstayed for a period of about one year and three months. She surrendered to the Immigration Department on 27 February 2004. The Magistrate took a starting point of six months, gave the Appellant full credit for her plea, reduced the sentence to four months' imprisonment and further reduced it by one month because she surrendered voluntarily.

3. In mitigation the Appellant's counsel told the Magistrate the Appellant was aged 26 and single. As her parents in Indonesia needed her financial support she stayed in Hong Kong after the termination of her contract trying to find a new employer. That was all the information the Magistrate was given and, on that information he sentenced.

4. Since then other matters have been drawn to the attention of this court giving details of the unhappy outcome of the employment contract. Not only was the Appellant cheated by the employment agency which demanded and exacted an illegal processing fee, she was treated badly and cheated by her employer who paid her only $1,000.00 for the one month she worked for him. Then, having terminated her contract, he did not pay her any money or give her an air ticket.

5. These matters were not put before the Magistrate but no blame attaches to the counsel appointed by the Duty Lawyer Scheme as it is quite clear that the Appellant did not give instructions on that basis. I have no doubt that had the Appellant given instructions about the true position of her contract, counsel would have made the Magistrate aware of those facts.

6. I note that 3 months is a proper sentence on the facts before the Magistrate. There is no sentencing tariff so each case should be looked at on its own facts. I have noted sentencing statistics put before the court by Mr Collins, who appeared in these proceedings. They give a general picture of sentences imposed for this offence in 2003, which were fines, imprisonment, suspended sentences, or fines plus suspended sentences. In 2003 fines ranged from $100 to $4500 and imprisonment from 1 day to 12 months.

7. Factors taken into account would include whether or not employment was entered into during the period of overstay; the length of the overstay; whether there was voluntary surrender to the authorities; the immediate reason for, or cause of, the overstay; whether there was a plea of guilty; whether the offence was repeated etc.

8. I am satisfied that if, at the time he sentenced this Appellant, the Magistrate had known the facts made known to this court, he would have imposed a lower sentence for this offence. The Appellant was in custody from the date of her surrender until the date she was granted bail pending this appeal, a period of some 5-6 weeks.

9. Accordingly I allow the appeal by ordering that the Appellant be sentenced to such term of imprisonment as will allow her to be released immediately.