Bang Asan Magdalena Bowaken v. HKSAR

HCMA 197/2022

[2022] HKCFI 3684

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 197 OF 2022

(ON APPEAL FROM STCC 728 of 2022)

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Before:  Deputy High Court Judge Woodcock in Court

Date of Hearing:  28 October 2022

Date of Judgment: 28 October 2022

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J U D G M E N T

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1.On 6 May 2022 the appellant appeared before the learned Magistrate David Cheung Chi-wai at Shatin Magistracy Court under STCC 728/2022.  She pleaded guilty to one count of taking employment while being a person who, having been given permission to land in Hong Kong under section 11 (1), remains in Hong Kong in breach of the time limit of stay imposed under section 11(2) in relation to permission, contrary to section 38AA(1)(c) and section 38AA(2) of the Immigration Ordinance, Cap 115.  She was sentenced to 15 months’ imprisonment.

2.The appellant now appeals against her sentence.  In doing so, she relies upon the format provided in Form 102, a notice of appeal to a judge against sentence without more.  She has not filed any grounds of appeal.  The general ground of her appeal is that her sentence is too severe.  She has, however, written a letter, as has her daughter residing here in Hong Kong.

Facts of the case

3.On 4 May 2022, the appellant was arrested working in the kitchen of a restaurant in Sai Kung. The appellant had a foreign domestic helper contract dated 3 January 2022; however, it was terminated prematurely on 31 January 2022.  The appellant was required to leave Hong Kong on or before 14 February 2022.  She submitted a fresh foreign domestic helper application on 10 February 2022 with the Immigration Department.  She did not leave Hong Kong on or before 14 February 2022.

4.Under caution, the appellant admitted she knew when she was required to leave Hong Kong, however, she thought that she could stay if she was awaiting a new visa and new contract.  She did know she was not allowed to take up employment whilst waiting.  A Filipino clansman had introduced her to work in a restaurant as a cleaning worker.  She was paid $3,000 a month to work there five days a week for four hours each day.

Mitigation

5.The defendant is 47 years old and has a clear record in Hong Kong.  This is very relevant when I consider the fact she has been here working continuously for the last 18 years as a foreign domestic helper without issue or any trouble with the law.  This last contract dated 3 January 2022 was to be only her fourth employer in Hong Kong.  Her daughter has also come to Hong Kong to work as a foreign domestic helper.

6.In mitigation, it was said that she submitted a fresh application for a new contract before her due date to leave Hong Kong.  She thought that her visa would be automatically extended.  However, while she waited for the result of her application, she ran out of money to feed and house herself which led to the commission of this offence.

Reasons for sentence

7.Prior to 1 August 2021, the appellant would have been charged as an overstayer.  She was arrested taking up employment.  She would have been prosecuted for a breach of condition of stay, an offence which would have attracted a short term of imprisonment or even a suspended sentence depending on how long that offender overstayed.

8.On 1 August 2021, section 38AA of the Immigration Ordinance was amended.  Those now in breach of the new section or subsection, section 38AA(1)(c) covers offenders like the defendant who arrived in Hong Kong as a foreign domestic helper then overstayed.  After overstaying, any offender taking up employment would be caught by this new subsection.

9.The magistrate took the view that this new subsection meant that the 15-month term of imprisonment laid down by the Court of Appeal in HKSAR v Usman Butt [2010] 5 HKLRD 452, which took into consideration The Queen v So Man King [1989] 1 HKLR 142, and applicable to illegal immigrants, contrary to section 38AA(1)(a), or those subject to a removal order or a deportation order contrary to section 38AA(1)(b) is now equally applicable to those that overstay in the territory contrary to section 38AA(1)(c) and take up employment.

10.The magistrate took the view that the legislative intent was to include overstayers who take up employment under section 38AA of the Immigration Ordinance to tackle illegal workers and discourage those who overstay to take up employment.

11.The magistrate believed the legislative intent was to send out a clear message to the public that not only was overstaying in Hong Kong illegal, but taking up employment, be it paid or unpaid, or establishing or joining any business, would be heavily punished, similarly punished as those who enter Hong Kong illegally intending the same.  His reasoning was that if those who committed an offence under section 38AA(1)(a) and (b) were upon a plea to be sentenced to 15 months’ imprisonment according to guidelines, then those caught by the new section 38AA(1)(c) should be treated the same; hence, the imposition of a 15-month term of imprisonment here.

Grounds of appeal

12.The appellant appeared in person and did not file perfected grounds of appeal.  She did send in advance two letters to the court from herself and from her daughter who works in Hong Kong as a foreign domestic helper.  Essentially, the complaints of the applicant are wholly non-legal in nature, and she cannot and does not seek to identify any error in the reasons for sentence.  She is throwing herself upon the mercy of this court and asking for a reduction in her sentence.

13.In her letter, the appellant relies on her family situation to support her appeal and requests for a reduction in her sentence.  Nothing in the letter from her or her daughter were included in mitigation before the magistrate.

14.Her daughter has been in Hong Kong working as a domestic helper since March 2019.  Her daughter is a single mother of her own child, aged 7.  In her home in the Philippines after the appellant’s daughter left to work in Hong Kong, it was the appellant’s husband who looked after the child as well as a sick nephew who has a serious kidney disease.  His diagnosis is chronic kidney disease stage 5.  He has, amongst other treatment, dialysis three times a week.

15.The appellant’s husband sadly passed away on 16 December 2021.  Essentially, her daughter’s salary will now not cover a caregiver in the Philippines after the death of her father.  Since January, other relatives have had to help out financially to pay someone in the Philippines to care on a daily basis for the young child and sick nephew.

16.The appellant’s last employment was terminated after less than a month because her employer lost her teaching job as a result of COVID measures and school closures.  She could no longer afford the appellant and had to terminate her contract.  The appellant could not afford to fly home nor pay for a 14-day hotel quarantine once home.  The COVID pandemic situation was still very serious both in Hong Kong and in the Philippines earlier this year.  The appellant had to find another employer and did submit an application four days before she was due to leave.  She tells me that the Immigration Department acknowledged her application on February 24.

17.On March 22, she received a notice asking for further details from the Immigration Department. She was told by the Immigration Department it would take six weeks to process her visa after submission of all necessary documents.  The appellant was confident that she would be re-employed but it would take time.  It was this delay which caused her to commit this offence.  She had run out of money to pay for food, accommodation and any other necessary expenses whilst waiting for her new visa and had no option but to work illegally until it was approved.

18.I have read the appellant daughter’s letter which reiterates that her young daughter is at home in the Philippines without proper care and supervision since her grandfather died in December 2021.  The applicant has given me documents to support details of the letters which includes her husband’s death certificate, her grandchild’s birth certificate, medical certificates diagnosing the young child with asthma, as well as the sick nephew with a very serious advanced kidney disease.

The respondent’s reply

19.The respondent submits that the magistrate was well aware that this section the appellant was convicted of, section 38AA(1)(c), came into operation only on 1 August 2021. It did not exist when the sentencing tariff was laid down by HKSAR v Usman Butt, but the magistrate’s reasoning was without fault and the sentence is neither excessive nor wrong in principle either.  The magistrate’s decision to apply that guideline of 15 months’ imprisonment after a plea, which was previously applicable to illegal immigrants and those that breached a deportation order for a removal order which now apply to the new offence under section 38AA(1)(c), was justified and took into account the intention of the legislature.

Discussion

20.It would appear that the objective behind this additional offence under section 38AA is to combat unlawful employment and rectify the fact that those who are here as lawful visitors but overstay and then are arrested for working illegally before being issued with a removal order or a deportation order are not subject to the same punishment meted out under section 38AA.

21.It was proposed to include section 38AA(1)(c) so that overstaying visitors who do take up employment will also be liable to be prosecuted under the same provision and subject to the same penalty levels as illegal immigrants who take up employment or those that are subject to a removal or deportation order who take up employment.  The subsections of section 38AA(1) of which there are four, (a) to (d), refer to different offenders or offenders who have made their way to Hong Kong under different scenarios but who then take up employment, whether paid or unpaid, or establish or join in any business.

22.For the purposes of this appeal leaving aside the question of whether the new subsection under section 38AA(1)(c) will attract the same sentence as is normally imposed on section 38AA(1)(a) and (b), that is a 15-month term of imprisonment after a plea, the fact is guidelines are not straitjackets.  Even in The Queen v So Man King, the Court of Appeal reiterated that there are situations where a sentencing court can adjust, lower, enhance or depart from that 15-month guideline.  For example, strong humanitarian considerations should be taken into account.  The Court of Appeal did refrain from giving detailed guidelines on how and when that sentence of 15 months’ imprisonment may be adjusted.

23.In this appeal, I have no reason to doubt the appellant’s submissions relating to her family background.  It should have been explored in depth during mitigation before sentence.  Having read the transcript, clearly, nothing of weight or substance was put before the magistrate for him to consider departing from the guidelines he found applied to and was appropriate to this offence and these facts.

24.I have no reason to not believe the appellant when she says she lost her job because of the pandemic and her employer’s own financial situation as a result of pandemic measures imposed; after all, the appellant had been working here for 18 years previously without issues or convictions.  Our lives may appear more normal now in October 2022, but at the beginning of this year things were very different.

25.For the appellant, the year began very badly.  She had just lost her husband.  She had sent home a lot of money, I am sure, to bury him, and was obviously unable to say goodbye in person.  She then lost her new job and had no income coming in.  If there were even flights between Hong Kong and the Philippines, they were extortionate at that time.  Then there was the requirement to quarantine and pay for one’s own hotel in the Philippines for 14 days.  In short, she could not afford to pay to go home and wait.

26.In addition, earlier on this year only Hong Kong residents could return to Hong Kong, so if the appellant had left to await the processing of a new employment contract, she would have found it impossible to return and when she could it would have been very costly with testing done at an ISO 15189 accredited lab required, hotel quarantine costs here, as well as the airfare.  Even access to the Immigration Department was curtailed around that time and their offices shut for a period.  Any visa applications were delayed and taking longer than usual.

27.The appellant believed she would ultimately be successful, but the process was slower at that time.  All these factors should have been and can be taken into account.  Never have we lived through times of such personal restrictions, anxiety and uncertainty.  The appellant was not a resident here, but a foreign national hoping to continue in employment.

28.The situation can be distinguished from other overstayers who take up unlawful employment because of the unusual times that we were living in earlier this year.  More importantly, her situation can be distinguished from other overstayers who take up unlawful employment and do not stop until they are either arrested or surrendered to the Immigration Department.  This appellant was working unlawfully until she hoped her new employment contract was approved.  I do not believe having worked here legally for 18 years, she would have planned otherwise.

29.It is on this basis that I will allow this appeal, not on the basis that the magistrate’s sentence was excessive, but because he was not given details or urged to consider the exceptional circumstances and mitigation of the appellant’s own peculiar situation.

30.It has long been said and stressed that domestic or family circumstances often do not justify a reduction in sentence.  As has been said by the Court of Appeal, the exercise of mercy when sentencing an offender must be done in the context of a balanced approach.  I have referred myself to HKSAR v Lkhaijav Bayanmunkh, CACC 320/2011.  In particular, I have considered what the Court of Appeal said at paragraph 14:

“How far a court can go in extending mercy to an offender in achieving a balanced sentence will inevitably vary from case to case, taking account of the crime the offender has committed and his personal circumstances. Thus, a just sentence is arrived at by a proper application of legal principles balanced with a consideration of personal circumstances. Justice will not normally be served by departing from proper sentencing principles as a sympathetic response to a prisoner’s personal circumstances. We qualify this last statement because we recognise that our courts are not just courts of law but courts of justice, and circumstances may arise, usually post sentence, where justice and the public interest require an immediate response which only the court can give.”

31.Clearly, mercy must be exercised by considerations which are supported by evidence and by having proper regard to essential sentencing principles and policy so as not to render a merciful sentence into an inappropriate one.  Nevertheless, mercy can be extended as long as it is done in a balanced approach.  The Court of Appeal in that same authority stated that the extension of mercy has always been part of a judge’s armory in dispensing justice.

32.It is evident to me that this is one such case where the court can extend mercy.  The appellant pleaded guilty at the outset.  I have considered her documents and personal situation.  That, plus the fact we were all seriously affected by COVID, and the drastic measures put in place to protect public health at the beginning of this year, meant the appellant committed this offence in exceptional circumstances.

33.To put it another way, if there had been no pandemic and measures imposed to combat it then I am sure she would not have been in this situation.  Some compassion must be called for.  There is room in this particular case to exercise discretion and temper justice with mercy to the extent that I will reduce the sentence of 15 months’ imprisonment by 7 months and substitute the appellant’s sentence with an 8-month term of imprisonment.

The appellant appeared in person

Ms Lam Cho-yi JoJo, PP of the Department of Justice, for the respondent