HKSAR v. Winda Agustin

HCMA 601/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 601 OF 2015

(ON APPEAL FROM STCC 2514 OF 2015)

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J U D G M E N T

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1.The Appellant pleaded guilty to one each count of using an identity card relating to another person and that of prohibition of taking employment and establishing business.[1] The Appellant was sentenced by Magistrate Merinda CHOW to a term of 15 months imprisonment. The Appellant appealed against her sentence. The Appellant was represented by Duty Lawyer and she was not represented in these appellate proceedings.

THE PROSECUTION CASE

2.The facts are straight forward.  On 8 August 2015, a police officer saw the Appellant washing dishes inside a restaurant in Shatin.  Upon enquiry, the proprietor of the restaurant claimed that the Appellant produced an identity card when she applied for a job.  Under caution, the Appellant admitted that she was not the actual holder of the identity card and she used the identity card to apply for the job.  The Appellant is a Form 8 holder.  The Appellant was a domestic helper from 2008 and 2010 in Hong Kong.

GROUNDS OF APPEAL AGAINST SENTENCE

3.The Appellant filed Form 102 on 11 September 2015 saying that the sentence was too severe.  The Appellant sent a letter to this Court.  The letter was dated 2 December 2015 but was only received on 28 December 2015 (the postal chop was dated 23 December).  The Appellant wrote to plead for mercy and wanted to have her sentence reduced by 3 months.  The Appellant said she was remorseful and asked for a chance.  In court today, the Appellant said she learnt that one of her friends got only 12 months imprisonment.

DISCUSSION

4.The sentencing guideline relating to this kind of offences is settled.  A 15-month imprisonment term after plea will usually be imposed.  In the Reasons for Sentence, the Magistrate noted that the Appellant had been convicted of the offences of breach of condition of stay and that of taking up unapproved employment back in January 2014.  A removal order was issued against the Appellant in April 2014.  The Magistrate said she “took a generous approach to order both sentences to run concurrently.”[2]

5.I consider that the sentence so imposed is neither manifestly excessive nor wrong in principle.  It is proper for the Magistrate to order the 2 sentences to run concurrently.  The Appellant forwarded no substantiated grounds to appeal against her sentence.

CONCLUSION

6.For the above said reasons, the appeal against sentence is dismissed.

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

The Appellant appeared in person