HKSAR v. Sunarti

HCMA 246/2018

[2018] HKCFI 2221

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 246 OF 2018

(ON APPEAL FROM WKCC 1418 OF 2018)

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J U D G M E N T

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1.The appellant pleaded guilty to an offence of “Prohibition of taking employment and establishing business” (Charge 9) before Acting Principal Magistrate A Yim (“the magistrate”). She was sentenced to 15 months' imprisonment.

2.The appellant now appeals against her sentence.

3.The appellant was represented by the Duty Lawyer Service in the court below.

The Facts

4.About 5:20 pm on 21 March 2018, police officers attended D1’s laundry workshop in response to a report of fighting.  During the enquiry, 9 workers (including D2 to D8) were found working at the premises.  D1 said she began to employ D2 to D8 since January 2018.

5.When asked to produce their identity documents, the appellant presented her Form 8 Recognizance.  D2, D4 and D5 to D8 were not permitted to work at the premises either.

6.On 22 March 2018, in the presence of an Indonesian interpreter, the appellant admitted under caution that she had worked at the laundry workshop for a week, but she was not allowed to work there.

7.Immigration check revealed that the appellant arrived at Hong Kong on 1 October 2015 as a foreign domestic helper.  A Removal Order was issued against her on 13 June 2017 and it is still in force.

Mitigation

8.The appellant is 47 and relies on the non-refoulement claimantallowance. She has 1 conviction record involving 1 offence of “Breachof condition stay”, for which she was sentenced to 2 months’ imprisonment in July 2017.

The Magistrate’s Reasons for Sentence

9.In sentencing the appellant, the magistrate gave her reasons[1] as follows:

“ 8. Section 38AA(1)(b) provides that a person in respect of whom a removal order or a deportation order is in force, must not take any employment, whether paid or unpaid, or establish or join in any business. In contravention, such person is liable on conviction to a fine at level 5 and to imprisonment for 3 years.

9. The Court of Appeal in the case of Usman Butt & others HCMA 70/2010 heard together with 4 similar appeals, having noted the background of the case of So Man King and theadaptation of deterrent sentences against illegal immigrant takingup employment in Hong Kong, moved on to consider what would be the appropriate sentence for offence under section 38AA.

10. The Court of Appeal in the case of Usman Butt having consider[ed] the history of section 38AA came to the view that a sentence of 15 months’ imprisonment (after plea) was required to be applied in a section 38AA offence both in respect of (1)(a) and (1)(b).

11. D2, [the appellant], D4 and D8 were subjected to a removal order and were charged with one count of prohibition of employment contrary to section 38AA(1)(b). The tariff of 15 months’ imprisonment after plea was applicable to them.

12. Whilst All of these defendants took up employment here because of economic reasons and the family situation submitted in their respective mitigation was known or within their contemplation before they committed the offence. I do not consider there to be any humanitarian reasons for me to depart from the usual tariff. The only material difference between [the appellant], D8 and D2, D4 was that D2 and D4 both were with clear record, for this I reduced the sentence of D2 and D4 by one month.

13. D5, D6 and D7 were not subjected to any removal order and they were charged with breach of condition of stay which involved different consideration.

14. The [appellant] is sentenced to 15 months’ imprisonment.”

Grounds of Appeal

10.The appellant acted in person in the appeal hearing.  She complained that there were 7 persons (including herself) who were arrested at the laundry workshop and they received different sentences.  She knows that her sentence is correct but still asked for a lighter sentence because her mother got sick in February. 

My Considerations

11.The magistrate has explained clearly in her Reasons for Sentence why she sentenced the appellant and the other 6 “workers” foundat the laundry shop in the ways she did.  D2, D4, D8 and the appellant were all subject to a Removal Order and thus the appropriate sentence after a timely guilty plea was 15 months' imprisonment.  She gave D2 and D4 each a further discount of 1 month for their clear record.

12.D5, D6 and D7 were not subject to any Removal Order and were each charged with a different offence.

13.The appellant's sentence is correct and I see absolutely no reason to interfere with it.  The appellant's mother became ill in February 2018 but she committed the present offence in March 2018.  She should have returned home in February instead of committing the present offence in March.  She has no one but herself to blame.

14.This appeal has no merits whatsoever and must be dismissed.  Had the appellant possessed the financial means, I would have ordered costs against her.   

Mr Lenny Cheng, SPP (Ag) of the Department of Justice, for the respondent

The appellant appeared in person