HKSAR v. Tamang Nimdorje

HCMA 580/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 580 OF 2015

(ON APPEAL FROM STCC 1180 OF 2015)

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J U D G M E N T

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1.The Appellant pleaded not guilty to one count of taking employment while being a person in respect of whom a removal order is in force.[1] There were 3 defendants in the charge sheet, and the Appellant was D1. The trial was heard before Deputy Magistrate Chao Tsz-kwan, Jolie. The Appellant was convicted after trial and was sentenced to an imprisonment term of 22 months and 2 weeks. The Appellant filed notices to appeal against his conviction and sentence. He abandoned the appeal against conviction. In Form 102 dated 8 September 2015, the Appellant stated that the sentence was too severe. The Appellant was represented at trial under the Duty Lawyer Service, and he was not represented in these appellate proceedings.

THE PROSECUTION CASE

2.A removal order was issued against the Appellant on 26 May 2014.  On 3 July 2014, an Immigration recognizance form was served on the Appellant prohibiting him from taking up any employment while he was being released on recognizance.

3.On 21 April 2015, police officers saw the Appellant and other defendants inside the warehouse of the Depot Asian Environment Protection Recycle Limited.  The Appellant was seen being on top of a pile of nylon bags, and he conveyed and moved a number of nylon bags placed on a stationary forklift to the area where the Appellant was standing.

4.The Appellant elected not to give evidence at trial.  In her Statement of Findings, the Magistrate said, “I have carefully assessed the evidence of all Prosecution witnesses and observed their demeanour in the witness-box.  Overall, their testimonies were clear and to the point and were not shaken under cross-examination.  I found all Prosecution witnesses to be honest and reliable, … I accepted their evidence to be the truth of what happened.[2]  The Magistrate also noted that, “Although D1 [the Appellant] did not give any evidence or call any defence witness at trial, I noted that D2 had given evidence and D3 had called DW1, who had given evidence, which were in favour of D1.  If I were to accept any of their evidence, I would have also considered them in favour of D1.  But I did not.”[3] Finally, the Magistrate found, “on the evidence, I accepted, D1–D3 were all observed to be working inside a huge recycling depot, which there were lots of nylon bags.  … D1 was seen moving ten-odd nylon bags from a forklift, and climbing up to some height to do so, within 3 minutes.”[4]

GROUNDS OF APPEAL AGAINST SENTENCE

5.In court today, the Appellant said his sentence was too long as other defendants got shorter sentence.  He is not educated and did not understand the law.

DISCUSSION

6.The Magistrate considered the mitigation of the Appellant, and noted that “D1 is a Nepalese, aged 46, and a recognizance holder.  He had a clear record.  … Before he came to HK, he ran a shop in Nepal and supported his family including his wife, two sons, and three daughters.” [5] The Magistrate applied the sentencing guideline of 15 months upon a guilty plea [which means a starting point of 22.5 months before plea] as stipulated in HKSAR v Usman Butt & another [2010] 5 HKLRD 452.  As the Appellant was convicted after trial and no mitigating factors can be made, the Magistrate adopted the starting point of 22.5 months and sentenced the Appellant accordingly.

7.I cannot see any substantial grounds of appeal against sentence put forward by the Appellant.  The sentence is in line with the authority and is not manifestly excessive or wrong in principle.

CONCLUSION

8.Based on the reasons abovesaid, I dismiss the appeal.

Mr Edmond Lee, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent HKSAR

The appellant appeared in person