DCCC 1115/2012





Naseer Ramzan

Before: HH Judge S D’Almada Remedios

Date: 20 February 2013 at 3.07 pm

Present: Mr Francis Haddon-cave, Counsel on fiat, for HKSAR
Mr Alan So, instructed by Wong and Partners, assigned by the Director of Legal Aid, for the defendant

Offence: (1) Robbery (搶劫罪)
(2) Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong (在香港非法入境後未得入境事務處處長授權而留在香港)


Reasons for Sentence


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 2012at 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 youafter 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 toHong 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 December2010 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 wassettled. Your former employer (PW3 in the robbery trial) on 26 July 2012 at the Labour Tribunal paid you the amount of $32,500 incash.

6. Mr So your counsel informed that me that you came to Hong Kong illegally because you had difficulty coming to Hong Kong throughthe 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 acriminal intimidation by your previous employer. It was alleged by you that your employer was incensed with your claim of unpaidwages. 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 tomake 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 explainthe 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 aftera plea of guilty. There are, however in my view, exceptional circumstances in this case such that the 15 months’ imprisonmentshould 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 channelsin making your unpaid wages claim. If however you had not or they had not understood you had come illegally, you had at no timehidden yourself from the authorities. You openly made a complaint in person to the police in May and appeared before the LabourTribunal 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 bean appropriate term and that is the term to which you shall be so sentenced.

(S. D’Almada Remedios)
District Judge