HKSAR v. Haryanti

HCMA 418/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 418 OF 2016

(ON APPEAL FROM TMCC 1501 OF 2016)

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J U D G M E N T

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1.This is an application for leave to appeal against sentence. The appellant pleaded guilty to two charges before the Acting Principal Magistrate, Ms Merinda Chow. Charge 1 was using a forged identity card, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap 177, and Charge 2 was taking employment while being a person in respect of whom a removal order is in force, contrary to section 38AA(1)(b) of the Immigration Ordinance, Cap 115. She was sentenced to 15 months’ imprisonment for each charge, the sentences were ordered to run concurrent to each other.

2.In summary, the facts are that the appellant used a forged identity card to apply for a job as a dishwasher in a restaurant on 23 May 2016.  On 27 May 2016, the police went to the restaurant and arrested her after inquiry. Under caution, she said she picked up the Hong Kong Identity Card somewhere for taking employment and she had already thrown it away after she made her job application.

3.The Immigration Department confirmed that the appellant had come to Hong Kong on 19 December 2008 on the strength of her Indonesian passport.  She was permitted to remain for employment as a domestic helper until 10 April 2010 or two weeks after termination of her contract, whichever was the earlier.  On 31 August 2009, her employment contract was prematurely terminated.  However, she did not leave Hong Kong thereafter.  Subsequently, a removal order was issued against her on 10 December 2009.  She was released on recognizance on 5 January 2010.  She was not allowed to take up employment in Hong Kong.

4.In the Acting Principal Magistrate’s reasons for sentence, she stated that the defendant had one previous conviction of breach of condition to stay in 2009, for which she was sentenced to 1 month’s imprisonment, suspended for 12 months.  The Acting Principal Magistrate followed the sentencing guideline in HKSAR v Usman Butt [2010] 5 HKLRD 452 and HKSAR v Li Chang Li, HCMA 935/2004.  She adopted a starting point of 22½ months’ imprisonment for each charge and reduced it to 15 months because of the appellant’s guilty plea.  Referring to HKSAR v Winda Agustin, HCMA 601/2015, she ordered both sentences to run concurrent to each other.  The magistrate said she saw no reason to depart from the decisions from the cases she had referred to when imposing the sentence of 15 months.

Grounds of appeal

5.The appellant is not legally represented at her appeal.  In her homemade written grounds of appeal, she relies on three grounds to state that her sentence is too severe.  The first ground is that her husband is really sick. He just had finished his surgery.  He has kidney problems but is getting worse even though he has had surgery. 

6.Secondly, she has two young children, aged 6 and 2, who are taken care of by her husband.  Her husband is also suffering from mental problems and she is concerned about their welfare.  At this hearing, she informed the court that she has not had contact with her husband for the past month.  She has no idea where her husband or her children are.  She is suffering from great stress as a result of her not knowing their whereabouts.  The stress caused her to bang her head as she cannot control herself. 

7.Her third ground of appeal is that she has skin disease; it is getting worse and cannot be treated by the doctor where she is in custody and she wishes to be released to seek a private doctor outside prison.  She reiterates that she thinks much about her husband and two young children.  She does not have any friends or relatives in Hong Kong to take care of them and she worries that her husband, who is from India, has left Hong Kong with her children.  She asks this court to reduce her sentence to one of 12 months’ imprisonment, taking into account these factors.

Discussion

8.The grounds put forward by the appellant are her stress of not knowing the whereabouts of her husband and her children and her own medical condition. Thus she appeals on the basis that she asks this court for mercy to reduce her sentence. 

9.The Acting Principal Magistrate correctly and properly adopted the starting points as set out in the sentencing guidelines in Usman Butt. She properly discounted the sentence of each charge by one-third to reflect the appellant’s guilty plea.  The sentence of 15 months’ imprisonment for each charge is entirely in line with the established sentencing guidelines.  She has appropriately ordered the sentences of the two charges to run concurrently. What the appellant is asking this court to do is to reduce the sentence because of family hardship and health problems suffered by herself.  Family hardship and her medical health problems are not valid reasons for reducing the proper terms of imprisonment imposed on the appellant in the present case.

10.As was stated in HKSAR v To Yiu Cho [2009] 5 HKLRD 309 where the court there referred to the note in Sentencing in Hong Kong by the learned authors:

“Family hardship which is usually attendant upon the conviction is to be viewed as part of the price the accused must pay for the crime and that

the adverse effect of imprisonment upon an offender’s family is not normally a factor to be taken into account.”

11.Referring to the observation of Silke VP in R v Chin Hon Yuen, CACC 393/1998, where he said that:

“Family circumstances are matters which a wise man would take into consideration before he commits an offence and not after.”

12.As for the ill-health put forward by the appellant, the Correctional Services Department would be able to provide the necessary treatment to the appellant in relation to her skin problem as complained.

13.There are, therefore, no grounds nor basis to reduce the appellant’s sentence. The appeal against sentence is therefore dismissed.  The sentences imposed on the appellant were not manifestly excessive or wrong in principle.

Mr Antony Leung, PP of the Department of Justice, for the respondent

The appellant appeared in person