HKSAR v. Naseer Ramzan

DCCC 1115/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1115 OF 2012

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Reasons for Sentence

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1.Defendant, you have pleaded guilty to a charge of unlawful remaining in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance.

2.You entered Hong Kong illegally by boat from China in or around February 2012.  You were arrested by the police on 26 August 2012 at about 1 am for an alleged offence of robbery.

3.You have been charged with the robbery and the unlawful remaining in Hong Kong in the same indictment before me. I acquitted you after trial of the offence of robbery.

4.It is clear from the evidence in the robbery trial and which was not disputed by the Prosecution that the reason why you came to Hong Kong was to make a claim for unpaid wages from your previous employer in Hong Kong to whom you had worked for from 2007 to December 2010 as a domestic helper. 

5.Whilst you were in Hong Kong illegally, you had lodged a claim at the Labour Tribunal in March 2012 for $210,000.  This matter was settled.  Your former employer (PW3 in the robbery trial) on 26 July 2012 at the Labour Tribunal paid you the amount of $32,500 in cash. 

6.Mr So your counsel informed that me that you came to Hong Kong illegally because you had difficulty coming to Hong Kong through the proper channels in acquiring a visa and in the end it was easier to come from China by a boat.

7.You did not go into hiding when you arrived in Hong Kong, contrarily you made a report to the police in May 2012 in respect of a criminal intimidation by your previous employer.  It was alleged by you that your employer was incensed with your claim of unpaid wages.  You also openly appeared before the court in July when your claim was settled. 

8.It is Mr So’s submissions that you had in fact told the police and the Immigration Department that you were here illegally to make a claim for unpaid wages however when you produced your HKID card (which you had when you were employed in Hong Kong previously), no further action was taken by either department. 

9.Mr So submits that perhaps the authorities did not understand you properly as your English was not sufficient and that may explain the reason that no further action was taken. 

10.I am sure you are well aware, for this offence of unlawful remaining, the usual sentence is one of 15 months’ imprisonment after a plea of guilty.  There are, however in my view, exceptional circumstances in this case such that the 15 months’ imprisonment should not be applicable in this case.

11.I accept that you may have gone to the authorities to tell them that you were here illegally when you were enquiring about the channels in making your unpaid wages claim.  If however you had not or they had not understood you had come illegally, you had at no time hidden yourself from the authorities.  You openly made a complaint in person to the police in May and appeared before the Labour Tribunal in person in July last year.

12.I do not condone the manner to which you sneakily came to Hong Kong even if it was for a legitimate purpose to claim unpaid wages. 

13.However the facts of this case are extraordinary and in the circumstances I consider a sentence of 6 months’ imprisonment to be an appropriate term and that is the term to which you shall be so sentenced.