HKSAR v. CHU TIM SHING

HCMA 936/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 936 OF 2004

(ON APPEAL FROM TWCC 2520 /2004)

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J U D G M E N T

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1.  This is an appeal against sentence.  The trial below was heard in Chinese, but, upon the application of counsel for the Appellant, I have agreed that the appeal should be conducted in English and that was with the consent of the Respondent’s counsel.

2.  The Appellant had pleaded guilty to one charge of employing a person not lawfully employable and he was sentenced to 4 months’ imprisonment.  He now appeals against that sentence in light of the new sentencing guidelines laid down by the Court of Appeal in the case of Secretary for Justice v Ho Mei Wa, CAAR 3 of 2003.

3.  This appeal is supported by the leaned Magistrate in his written Reasons for Sentence and the Respondent also support the appeal against sentence.  Briefly, the facts are that if the Appellant had employed a person who was a holder of a two-way permit and was on a family visit in Hong Kong. 

4.  The Appellant had pleaded guilty at the earliest opportunity which is 17 August 2004.  The Appellant had a clear record prior to the offence.  It was admitted that the employee had worked for only one or two days.  There was no element of exploitation.  In mitigation, it was revealed that the Appellant is the sole breadwinner of his family.

5.  According to the guidelines laid down by the Court of Appeal in the case of Ho Mei Wa, the appropriate starting point for a sentence is one of 3 months’ imprisonment as correctly stated by the learned Magistrate, with his plea, he is entitled to a 1/3 discount so he should be sentenced in this case to 2 months’ imprisonment.

6.  The Appellant had been in prison since 17 August and Miss Cheung pointed out that he would be due for release on 17 October.

7.  Now, in light of the above fact, I will allow the appeal and the sentence will be reduced to allow for the Appellant’s immediate release from prison.

Miss Rosaline S Y Leung, SGC of Department of Justice, for the Respondent

Ms Janine Cheung, instructed by Messrs Alvan Liu & Partners, for the Appellant