HKSAR v. Lam Kwong Choy

DCCC 168/2017

[2018] HKDC 804

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 168 OF 2017

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REASONS FOR SENTENCE

1.The defendant stands convicted after trial of one charge of conspiring with Ms Setyowati to contravene a condition of stay imposed on Ms Setyowati by the Director of Immigration, contrary to section 41 of the Immigration Ordinance[1] and sections 159A and 159C of the Crimes Ordinance[2].

2.Full particulars of the offence are set out in my verdict handed down earlier today.  In summary Ms Setyowati was permitted to remain in Hong Kong between 12 May 2011 and 12 May 2017 for employment as a domestic helper for the defendant at the defendant’s home, Flat B, 12th floor, Cheong Fat Building, No. 48B Tai Tong Road, Yuen Long, (“the contractual address”). 

3.On a day unknown between June and July 2016 the defendant asked Ms Setyowati to move to Room D, 11/F, Tower 1, Greenfields, No. 1 Fung Kam Street, Yuen Long (“the Greenfields address) to do domestic chores and look after his two children.  Ms Setyowati moved to the Greenfields address where she worked and resided.  The defendant did not make a declaration notifying the Immigration Department that Ms Setyowati would work and reside in the Greenfields address.

Mitigation

4.I have carefully considered everything said on behalf of the defendant by Mr Pang SC. I take into account that the defendant is responsible for the care of his companion who is terminally ill with cancer and that save for a minor conviction in 1986, which is now spent, the defendant has no previous convictions.    

5.I accept the submission of Mr Pang SC that the guideline sentence of three months’ imprisonment laid down by the Court of Appeal in Secretary for Justice v Ho Mei Wa[3] for employing a person not lawfully employable, as applied in HKSAR v Cheung Ki[4], to aiding and abetting a breach of condition of stay, does not apply. 

6.Mr Pang SC submits that taking into account that Ms Setyowati worked most of the time at the contractual address; the breach was of short duration; and that the work was domestic work looking after the children of the defendant, the offence is at the lower end of the scale for which a financial penalty would adequately reflect the seriousness. 

7.I agree with Mr Pang SC that a financial penalty is appropriate.  The defendant is convicted and fined $10,000.