HKSAR v. Ramesh Kumar Rai

HCMA 873/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 873 OF 2010

(ON APPEAL FROM STCC 5366/2010)

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BETWEEN

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Before: Hon Wright J in Court

Date of Hearing: 5 January 2011

Date of Judgment: 5 January 2011

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J U D G M E N T

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1.On 9 October 2010, the appellant was convicted on his own plea of the offence of “Taking up employment” contrary to ss. 38AA(1)(a) and 38AA(2) of the Immigration Ordinance. On 5 November 2010, he was sentenced to undergo imprisonment for a period of 15 months. He asked this court to take into account in this appeal the fact that he had spent between 27 August 2010 and 22 September 2010 remanded in Lai Chi Kok.

2.It is the second occasion on which the appellant has been convicted of the offence of taking up employment.  In respect of the first offence he was sentenced to undergo imprisonment for a period of 14 months.  It was that sentence which he completed on 27 August 2010.  This offence was committed on 5 October 2010, some 13 days after he was released from Lai Chi Kok.

3.There is nothing before me to show why he was detained between 27 August and 22 September 2010, although I am told on behalf of the respondent that he was detained for reasons unrelated to these proceedings.

4.It is self-evident that the period of detention between August and September could have had nothing to do with this offence given that that period fell before this offence was committed.  I can see no reason why the appellant should be afforded credit for that period.

5.Moreover, the sentence imposed by the magistrate in this matter was lenient: 15 months imprisonment for this offence for a first offence on a plea of guilty is the tariff sentence.  The magistrate appears not to have taken into account the fact that this offence was committed within a matter of weeks of the completion of the previous period of imprisonment.

6.The appeal is dismissed.

Ms Peggy Leung, Ag. SPP of DOJ, for the Respondent

The Appellant, in person