HKSAR v. Riris Tranmiati

DCCC 172/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 172 OF 2017

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to 2 counts of Breach of condition of stay (1^st & 2^nd charges), contrary to section 41 of the Immigration Ordinance, Cap 115 and 24 counts of Using an identity card relating to another person (3^rd to 26^th charges), contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap 177.

Summary of facts

2.The defendant arrived in Hong Kong on 28 February 2008 as a domestic helper and was granted extension to remain in Hong Kong on 17 January 2011 for a contract commencing on 8 February 2011.  Subsequently, her employment contract ended prematurely on 30 June 2011.  The defendant did not apply for further extension of stay or visa for employment as foreign domestic helper after 30 June 2011.  However, she continued to stay in Hong Kong 14 days after her employment contract ended and therefore she was in breach of a condition of stay that she was only permitted to remain in Hong Kong as a foreign domestic helper.

3.On 5 April 2013, the defendant applied for a job at a Chinese restaurant in Lok Ma Chau, New Territories as a cleaning worker.  During the interview, she presented a Hong Kong Identity Card in the name of Rai Brinda (“the ID Card”).  The management staff briefly checked the ID Card and believed that the defendant was the bona-fide holder of the ID Card.  As a result, she was employed by the restaurant between 5 April 2013 and 24 November 2016, earning HK$10,000 to HK$15,000 per month.

4.Initially the restaurant paid the defendant’s monthly salary by cheque. Every month the restaurant issued a cash cheque to the defendant.  During the employment, a total 25 cheques were issued to the defendant.  However, since April 2015, at the defendant’s request, the restaurant paid the defendant’s salary in cash.

5.Between April 2013 and March 2015, the defendant cashed the cheques at the Yuen Long Branch of the DBS Bank.  On 23 occasions, the defendant presented the ID Card to the bank tellers to confirm her identity.

6.Immigration record reveals that the ID Card used by the defendant belonged to another person and it was reported lost.

7.Under caution during an interview, the defendant admitted the following:-

(i) she was terminated on 30 June 2012 and she knew she had to leave Hong Kong within 14 days but she did not;

(ii) she remained in Hong Kong as an overstayer since 15 July 2012;

(iii) her Indonesian friend gave her the ID Card so that she could use it to find a job;

(iv) the ID Card belonged to a person named Rai Brinda but she did not know this person;

(v) On 5 April 2013, she posed as the bearer of the ID Card and found a job at a restaurant. She had presented the ID Card during the interview;

(vi) she was employed as a cleaning worker and signed an employment contract with a monthly salary of HK$10,000;

(vii) she worked for 10 hours per day and 6 days per week;

(viii) between April 2013 and March 2015, she obtained her salaries by cheques. Upon receipt, she cashed the cheques at the Yuen Long Branch of the DBS Bank, during which she presented the ID Card to the bank tellers to confirm her identity.

Mitigation

8.The defendant is now 37 years of age.  She is single and came from a rural area in Indonesia.  Back in Indonesia, she lived with her parents and two brothers.  They were all farmers.  She received primary education and used to work as a farmer as well.  She first came to Hong Kong to work as a domestic helper in 2008 and her employment was terminated in 2011.  After that, she overstayed and worked as a cleaning worker to support her living.

9.Defence submitted that the defendant was the main breadwinner of her family.  After she lost her job as a domestic helper, she needed to stay in Hong Kong to continue to work to support her family.  She is very remorseful now and she asks the court to treat her leniently.  As there are multiple charges, defence urged the court to consider the totality of the sentence.

Sentencing consideration

10.For the 1^st charge, the circumstances were quite serious as the defendant overstayed for over 3 years. Therefore, custodial sentence is inevitable.  For the 3^rd to 26^th charges, the defendant used an identity belonging to another to seek employment and to cash cheques.  According to HKSAR v Li Chang Li [2005] 1 HKLRD 865, for possession of identity card belonging to another, it was held by the Court of Appeal that in the absence of exceptional circumstances and upon a guilty plea, a sentence of 12 months’ imprisonment is appropriate.  If the offender has actually produced the identity card to conceal his/her identity, work illegally or unlawfully further his/her stay in Hong Kong, then the starting point after a guilty plea should be 15 months’ imprisonment.

11.In the present case, the defendant did produce the identity card to obtain the job and to cash the cheques.  Therefore, for the 3^rd to 26^th charges, the sentence after the guilty pleas should be 15 months’ imprisonment.  That means the individual starting point before plea should be about 22 ½ months’ imprisonment.  As there are altogether 24 similar charges, it would be more appropriate to set a global starting point. 

12.Considered all circumstances of the case, personal background of the defendant, her clear record and the mitigation put forward, for the 1^st and 2^nd charges, I adopt 9 months’ imprisonment as the starting point.  After giving one third discount for the guilty pleas, the defendant is sentenced to 6 months’ imprisonment for each charge.  For the 3^rd to 26^th charges, I adopt 36 months’ imprisonment as the starting point for each charge.  After giving one third discount for the guilty pleas, the defendant is sentenced to 24 months’ imprisonment for the 3^rd to 26^th charges.  Further considered the totality of the sentence, I order all the sentences to be served concurrently.  The total sentence is 24 months’ imprisonment.