HKSAR v. Dedal, Zernan Ralas

HCMA 410/2020

[2021] HKCFI 1788

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 410 OF 2020

(ON APPEAL FROM STCC 3686 OF 2020)

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BETWEEN

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Before: Hon D’Almada Remedios J in Court

Date of Hearing: 21 June 2021

Date of Judgment: 21 June 2021

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J U D G M E N T

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1.The appellant was convicted on his own plea by a magistrate[1] of one count of “taking employment while being a person in respect of whom a removal order is in force”, contrary to sections 38AA(1)(b) and 38AA(2) of the Immigration Ordinance, Cap. 115. He was sentenced to 15 months’ imprisonment.

2.The appellant now appeals against his sentence.

Brief facts

3.The appellant admitted the brief facts of the case that he was subject to a removal order that was issued and served on him on 31 March 2015 and 6 April 2015 respectively.  He was not allowed to take up employment in Hong Kong.  On 9 November 2020, the appellant was found working as a dish washer in a restaurant in Central when the removal order was still in force.

4.In a record of interview the defendant admitted that he was aware that a removal order was issued against him and he was not allowed to work in Hong Kong.  He had been working at the restaurant as a dish washer for a month with his working hours from 1700 to 2300 hours at an hourly wage of $60 per hour.

Reasons for sentence

5.The magistrate took into account the appellant was 43 years of age and had a clear record.  He was a non-refoulement claimant from the Philippines with a wife and 3 daughters who were living back in homeland. 

6.In sentencing the appellant the magistrate considered the sentencing guideline in HKSAR v Usman Butt & Another [2010] 5 HKLRD 452 and sentenced the appellant to 15 months’ imprisonment upon his plea of guilty.

Grounds of appeal against sentence

7.The appellant submitted that his sentence was manifestly excessive and his sentence should be reduced.  In his oral grounds at the appeal hearing he stated that he wanted to return and be deported back to the Philippines as soon as possible.

Conclusion

8.The magistrate correctly applied the tariff as laid down in Usman Butt.  There were no mitigating factors to reduce the sentence from the relevant starting point.  The sentence is entirely proper.

9.There is no merit in this appeal and the appeal against sentence is dismissed.

Ms Lisa Go, SPP of the Department of Justice, for the respondent

The appellant appeared in person