HKSAR v. Sri Rochmulyati Binti Tjeang Rayes Bin Abdul Majid

CACC000769/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.769
(Criminal)

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Coram: Hon. Power, V.-P., Leong and Rogers, JJ.A.

Date of Hearing: 22 April 1998

Date of Judgment: 22 April 1998

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant in this matter pleaded guilty to four immigration offences. They were offences 1 and 2 and 7 and 8 in a charge sheet, which contained in all eight offences. The other offences were ordered to remain on the file. The applicant was sentenced overall to imprisonment for 16 months. This was calculated in the following way - 12 months on the first charge, three months on the second charge, concurrent with the 12 months on the first charge, and two months on each of the seventh and eighth charges consecutive to the period imposed on the first and second charges and to each other, making a total of 16 months. She now seeks leave to appeal against the sentence of 12 months imposed on charge 1.

2. When dealing with the matter, we must, as Mr. Tong, who appears for the applicant, concedes, keep in mind the provisions of s.81 of the Criminal Procedure Ordinance which provides that in circumstances such as this, where there is an application for leave to appeal against one of a number of sentences imposed at the same time, it shall be treated as an application in respect of all of the sentences.

3. The applicant, having finished a contract as a domestic helper in 1995 and wishing to stay on in Hong Kong, applied in October 1996, with the help of a person called Mengoo, to the Immigration Department for permission to stay further. She and Mengoo created a set of false documents to present to the department to obtain this extension of visa. These documents stated that she would be employed by a Mr. Philip Lau. In fact she never worked for any such person. It was the creation of these documents that led to the first charge the making of a false representation to an Immigration Officer.

4. Many months later in October 1996 it was discovered that she had taken work in breach of her condition of stay as a telephone operator. This led to the second charge, breach of condition of stay. We have not been told what she did or how she worked between November 1995 and October 1996. Both the seventh and eighth charges are charges of aiding and abetting the making of a false representation. It appears that in February 1996, she introduced another maid, a Madam Leano, to Mengoo and then witnessed a bogus contract - that was the seventh charge.

5. In March 1996, she did the same favour, although it seems without the assistance of Mengoo, for a Miss Shivkumar. That led to the eighth charge.

6. The trial judge reminded himself of the seriousness of immigration offences. He said:

"Immigration is an important and sensitive area in the Special Administrative Region of Hong Kong. We provide certain kinds of jobs for immigrants who apply properly for such jobs from neighbouring countries, but everyone is aware there is a huge pool of labour in the mainland seeking to come and benefit. Hong Kong is able to offer well-paid employment and offers also the stability of our dollar.

The defendant has shown a propensity to disregard our rules. I accept that she had personal hardship, but Hong Kong cannot tolerate a large illegal workforce and maids who terminate contracts and go to work in other fields are a problem. I do, however, take into account the defendant's guilty pleas and the mitigation which has been skillfully advanced by her advocate. From the public point of view, however, I have to take a firm and serious view to remind those who may have the same inclination that it is not worth working illegally here."

He then imposed the sentences which I have already indicated.

7. Mr. Tong submits to us that these sentences were manifestly severe. He has referred us to a number of cases where different sentences have been imposed for similar kinds of offences, but we don't find any real assistance from those decisions. We must look at the facts of the particular case and of the criminality here involved. We are satisfied that the trial judge was well aware of the criminality involved and that he made careful and proper calculations when he came to consider sentences. It is true that the individual sentences could have been differently calculated and different periods might have been ordered for any one or other of them, and that a different approach might have been adopted when making them consecutive and concurrent. However, what we must decide, at the end of the day, is whether 16 months overall was a proper sentence. Was that period manifestly excessive? We are quite satisfied that it was not. The sentence was a proper one and nothing has been urged today that in any way suggests otherwise. We, therefore, refuse the application.

Representation:

Miss Denise Chan (D.P.P.) for the Respondent.

Mr. Paul Tong assigned by D.L.A. for the Applicant.