HKSAR v. WANG HUI HUI

HCMA 533/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 533 OF 2008

(ON APPEAL FROM STCC 3698/2008)

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J U D G M E N T

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1.  The Appellant was convicted in the Magistracy on his own plea of one count of “Breach of condition of stay”.  He was sentenced to 3 months’ imprisonment and appeals that sentence.

Facts

2.  The Appellant came to Hong Kong on a valid two-way permit on 16 May 2008 and was admitted to stay in Hong Kong until 14 August 2008 as a visitor.  He was prohibited from taking up employment during that period.  He was caught on the day he arrived in Hong Kong by Immigration Task Force Officers who found that he was working in a massage parlour by providing foot massage service.  He was arrested together with 4 other mainland citizens who were also caught working at the said massage parlour.  Under caution, the Appellant admitted that he had worked at the massage parlour since January 2008 and earned HK$60.00 per customer.

3.  The Magistrate was advised that the Appellant had a clear criminal record and that he came to Hong Kong to earn money for his tuition fees.

4.  When sentencing, the Magistrate took into account that there were a large number of similar cases coming before the Court on a daily basis; he considered deterrent sentences were necessary and the length of the prison term depended inter alia on the length of the unlawful employment. 

5.  In the case of this Appellant, he took a slightly higher starting point than he had for the men who were sentenced with him, because the Appellant admitted working in the parlour for a considerably longer period than they.  He took 4½ months’ as a starting point and reduced it to 3 months to reflect the Appellant’s guilty plea.

6.  No formal grounds of appeal were filed but the Appellant complained at being treated differently from the other people arrested with him.  Further there were prisoners serving their sentences with him who had received lesser sentences than he had.  When it was pointed out to him, that the Magistrate had noted his admission that he had been working in Hong Kong since January 2008, the Appellant denied that he had said that to the Immigration Officer and claimed that because he did not speak Cantonese the error had been recorded.  The Appellant was represented by the Duty Lawyer at plea.

7.  The case of HKSAR v Xie Chun Mei [2004] 1 HKLRD 865 established that 2 month’s imprisonment on a plea of guilty was appropriate for a two-way permit holder who had entered Hong Kong lawfully but had taken up employment and breached the condition of stay.  The starting point for sentence after trial would ordinarily be 3 months’ imprisonment.

8.  The Magistrate adopted a higher starting point because he noted the prevalence of the offence and noted that the Appellant had been working for considerably longer than the others. 

9.  There is no basis for stating that this sentence was manifestly excessive or wrong in principle and the appeal against sentence is dismissed.