HKSAR v. Ernawati

HCMA 1048/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1048 OF 2008

(ON APPEAL FROM ESCC 4476/2008)

----------------------

----------------------

Before:  Deputy High Court Judge E Toh in Court

Date of Hearing:  27 February 2009

Date of Judgment:  27 February 2009

----------------------

J U D G M E N T

----------------------

1.The appellant was sentenced in the Magistrate’s Court after pleading guilty to 17 months’ imprisonment on two charges.  The first charge was theft, and the second charge was breach of a deportation order.  She now appeals against that sentence.

2.When the appellant appeared before the learned Magistrate, the hearing was conducted in Chinese and she was represented by a duty lawyer.  She appears in person on appeal and she has agreed to have the hearing on appeal conducted in English.  The reason being that the court appointed interpreter can only translate from Indonesian to English.

3.The facts which were admitted show that on the day of the offence, the appellant was employed by the victim of the theft.  She had started working for the victim in 2008 in the month of August.  Prior to that, in February 2000, she had been served with a deportation order, and she was put on a plane back to Indonesia.

4.When the appellant arrived in Hong Kong on 29 August 2008 to begin her employment, she was given permission to stay to work until 2010.  Shortly after beginning work, on 3 September 2008, the appellant stole money from her employer’s drawer and disappeared from her place of employment.  Her employer reported the matter to the police.  On 12 September 2008, the appellant was intercepted at the Macau Ferry Terminal when she was about to leave Hong Kong for Macau.  The total amount of cash stolen from her employer was HK$3,000 and RMB 1,000.

5.In mitigation, counsel, representing the appellant, pleaded for leniency on the basis that the appellant’s family in Indonesia is very poor and needs for her to earn money to give them for their living expenses.  The Magistrate in considering sentence, after considering the facts in this case, also reminded himself of the previous cases where for similar offences the appropriate sentences pertaining to the second charge, and particularly, the case of HKSAR v Vu Thi Van Anh, HCMA 289/2000.  The court there had decided that for this type of breach of deportation order offences, the range of sentences is between 12 to 16 months’ imprisonment.  The learned Magistrate, having considered the other cases listed in his Reasons for Sentence at paragraph 18, then considered that in this case because the appellant had previous convictions of, inter alia, breach of condition of stay and using forged or unlawfully obtained travel documents that the appropriate sentence for the appellant would be one of 15 months’ imprisonment.  And this would be a sentence he considered appropriate after plea.

6.The appellant’s background was also considered by the learned Magistrate, but he considered that there was nothing unusual in her background to warrant any exceptional treatment.

7.On appeal, the appellant submitted again that she has to earn money to maintain her family’s living expenses in Indonesia, particularly her sick parents.  She asked for a more lenient sentence, so that she can go back home earlier to take care of them.  The appellant does not appreciate that what she has done is very serious.  She stole from her employer shortly after arriving in Hong Kong and was trying to escape to Macau.  She breached the deportation order by coming back.  And between 1996 and 1999, she has committed several offences, involving using forged documents and breaching her condition of stay.  The learned Magistrate had carefully considered the background of the appellant, he has considered the appropriate sentence in this case and the sentence that he has arrived at is not, by any means, manifestly excessive or wrong in principle.

8.For breach of a deportation order, the sentence of 15 months after a plea of guilty is an appropriate sentence.  So the appeal is dismissed.

Ms Laura Ng, Senior Public Prosecutor, for the Respondent

The Appellant, appearing in person