HKSAR v. Magdalita Federico Jr Montales

HCMA 257/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 257 OF 2014

(ON APPEAL FROM SHATIN MAGISTRACE CASE NO 710 OF 2014)

___________________

___________________

________________

J U D G M E N T

________________

1.This is an appeal by the appellant in relation to the sentence that was imposed on him in the Magistrate’s Court on 27 March 2014. On his plea of guilty to a charge of taking employment while being a person in respect of whom a removal order is in force, contrary to ss 38AA(1b) and 38AA(2) of the Immigration Ordinance, Cap 115, the Magistrate sentenced the appellant to 14 months’ imprisonment for the offence and also imposed a consecutive term of 2 weeks’ imprisonment for a breach of a suspended sentence. The Magistrate gave a brief account of the circumstances in which he was found by the police working unlawfully in Hong Kong. He admitted doing so since 24 February 2014.

2.While the removal order was in force, the Magistrate noted he had two previous convictions for breach of condition of stay, with the last one in June 2013, for which he was sentenced to 2 weeks’ imprisonment suspended for 3 years.  He activated the sentence because of the commission of this offence during the suspension period.  The Magistrate noted that he had been in detention for 52 days before the removal order was issued as result of making an application as a torture claimant.

3.The Magistrate followed the guideline case of HKSAR v Usman Butt & ors [2011] 1 HKC 12, which provides that offences of this type attract a term of 15 months’ imprisonment upon a plea of guilty.  He noted that the appellant was not entitled to any deduction for the period of administrative detention pursuant to s 67A of the Criminal Procedure Ordinance, Cap 221.  The Magistrate however, did allow for a deduction of 1 month to the guideline sentence of 15 months’ imprisonment to reflect the period of administrative detention.  Accordingly, he imposed a sentence of 14 months’ imprisonment and activated the suspended terms of the other sentence of 2 weeks which he made consecutive to that sentence.

4.Given the circumstances of the case and the legal principles that applied, the end of result was that the appellant was sentenced to 14 months and 2 weeks’ imprisonment. I cannot fault the decision of the Magistrate for the sentence that he imposed on the appellant.

5.Accordingly, the appeal is dismissed.

Mr Prakash L Daryanani, senior public prosecutor of Department of Justice, for the respondent

The appellant appeared in person