HKSAR v. Nanik Irnamawati

HCMA 613/2015

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J U D G M E N T
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1.The Appellant, who was D4 in the charge sheet, pleaded guilty to one count of taking employment while being a person in respect of whom a removal order was in force[1] before Magistrate Merinda Chow on 10 September 2015. The Appellant was sentenced to 15 months imprisonment. The Appellant, together with other defendants, was represented by counsel at trial, but was not represented in the present appellate proceedings.

2.The Appellant now appealed against her sentence.  The Appellant had been detained for 68 days under the administrative detention.[2]

The Prosecution case

3.The Magistrate has summarized the facts as follows[3]:

“On 8 September 2015, Immigration Officers conducted an operation at Captain’s Japanese Restaurant. Four Defendants were arrested. The Appellant was D4. At the material time she was wearing a blue uniform at the dining area of the restaurant. It was revealed that she was an immigration recognizance form holder. Under caution, D4 admitted that:- she had worked as an old job worker for about 2 years, … every month she received her salary by cash.”

Grounds of appeal against sentence

4.The Appellant filed Form 102 on 16 September 2015 with a letter saying that the sentence was too severe.  In court today, the Appellant said she had replied to the officers wrongly.  She was not working there permanently but was just helping.  The Appellant asked why in other similar cases, the court passed lenient sentence.  She wanted to be released soon and would return to Indonesia immediately.  Her mother was seriously ill and she needed to look after her child.

Discussion

5.The Appellant had one previous conviction in May 2011 whereby she was fined $3,000 for the offence of breach of condition of stay.  The Magistrate referred to the Appellant’s mitigation as follows: [4]

“The Immigration recorded showed that D4 arrived [in] Hong Kong on 6 November 2009 and was permitted to work in Hong Kong as a domestic helper until 6 November 2011. She was terminated in June 2010. She was arrested in May 2011. A removal order was served on her on 3 June, 2011. She was released on recognizance on 7 July, 2011 after being detained for 55 days. She failed to report to Immigration Department and was further detained for 13 days between 23 May to 4 June, 2013.” [5]

The Magistrate rightly applied the sentencing guideline as enunciated in HKSAR v Usman Butt [2010] 5 HKLRD 452 where a term of 15-month imprisonment was imposed after plea.

6.As regards the administrative detention of 68 days, the Magistrate has the following remark:-

“Although the Appellant appeals against her sentence4 on the ground that it was too severe, she did not mention her “administrative detention”. It is clear to me that her two periods of detention were unrelated to the present case:- (1) 55 days [14 May – 7 July 2011]; (2) 13 days [23 May – 4 June 2013]. I therefore refuse to exercise my discretion to deduct the 2 periods of detention from the 15 months imprisonment because the reason of detention is clearly unrelated to present offence.”[6]

7.I cannot find any flaws in the reasoning put forward by the Magistrate. In fact, I am of the view that offenders of similar offences with similar background should not expect any deduction from sentence as of right, even though he or she had been detained under any kind of administrative detention. The discretion should be exercised sparingly and only under special circumstances, in order to forestall the possibility of generating certain “legitimate expectations” or any “wishful thinking” from potential offenders.

8.The Appellant’s appeal against sentence cannot be substantiated.

Conclusion

9.For the reasons above said, I dismiss the appeal against sentence. 

Mr Prakash L DARYANANI, Senior Public Prosecutor of the Department of Justice, for the Respondent HKSAR

The Appellant appeared in person