A A
B B
DCCC 172/2017
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 172 OF 2017 E
F F
-------------------------
G HKSAR G
v
H H
RIRIS TRANMIATI
I -------------------------- I
J J
Before: Deputy District Judge Jason Wan in Court
K Date: 26 June 2017 K
Present: Miss Ranee Jhamatmal Khubchandani, Senior Public
L L
Prosecutor, for HKSAR/DPP
M Miss Lee Kit Ying of Lau Chan & Ko, assigned by the M
Director of Legal Aid, for the defendant
N N
Offence: [1] - [2] Breach of condition of stay (違反逗留條件)
O O
[3] - [26] Using an identity card relating to another person
P
(使用他人的身分證) P
Q Q
-----------------------------------------
R REASONS FOR SENTENCE R
-----------------------------------------
S S
T T
U U
V V
-2-
A A
B B
1. The defendant pleaded guilty to 2 counts of Breach of
C condition of stay (1st & 2nd charges), contrary to section 41 of the C
Immigration Ordinance, Cap 115 and 24 counts of Using an identity card
D D
relating to another person (3rd to 26th charges), contrary to section 7A(1A)
E of the Registration of Persons Ordinance, Cap 177. E
F F
Summary of facts
G G
2. The defendant arrived in Hong Kong on 28 February 2008 as
H H
a domestic helper and was granted extension to remain in Hong Kong on
I 17 January 2011 for a contract commencing on 8 February 2011. I
Subsequently, her employment contract ended prematurely on 30 June
J J
2011. The defendant did not apply for further extension of stay or visa for
K employment as foreign domestic helper after 30 June 2011. However, she K
continued to stay in Hong Kong 14 days after her employment contract
L L
ended and therefore she was in breach of a condition of stay that she was
M only permitted to remain in Hong Kong as a foreign domestic helper. M
N N
3. On 5 April 2013, the defendant applied for a job at a Chinese
O restaurant in Lok Ma Chau, New Territories as a cleaning worker. During O
the interview, she presented a Hong Kong Identity Card in the name of Rai
P P
Brinda (“the ID Card”). The management staff briefly checked the ID Card
Q and believed that the defendant was the bona-fide holder of the ID Card. Q
As a result, she was employed by the restaurant between 5 April 2013 and
R R
24 November 2016, earning HK$10,000 to HK$15,000 per month.
S S
4. Initially the restaurant paid the defendant’s monthly salary by
T T
cheque. Every month the restaurant issued a cash cheque to the defendant.
U U
V V
-3-
A A
B B
During the employment, a total 25 cheques were issued to the defendant.
C However, since April 2015, at the defendant’s request, the restaurant paid C
the defendant’s salary in cash.
D D
E 5. Between April 2013 and March 2015, the defendant cashed E
the cheques at the Yuen Long Branch of the DBS Bank. On 23 occasions,
F F
the defendant presented the ID Card to the bank tellers to confirm her
G identity. G
H H
6. Immigration record reveals that the ID Card used by the
I defendant belonged to another person and it was reported lost. I
J J
7. Under caution during an interview, the defendant admitted the
K following:- K
L L
(i) she was terminated on 30 June 2012 and she knew she
M had to leave Hong Kong within 14 days but she did not; M
N N
(ii) she remained in Hong Kong as an overstayer since
O O
15 July 2012;
P P
(iii) her Indonesian friend gave her the ID Card so that she
Q Q
could use it to find a job;
R R
(iv) the ID Card belonged to a person named Rai Brinda but
S S
she did not know this person;
T T
U U
V V
-4-
A A
B B
(v) On 5 April 2013, she posed as the bearer of the ID Card
C and found a job at a restaurant. She had presented the C
ID Card during the interview;
D D
E (vi) she was employed as a cleaning worker and signed an E
employment contract with a monthly salary of
F F
HK$10,000;
G G
(vii) she worked for 10 hours per day and 6 days per week;
H H
I (viii) between April 2013 and March 2015, she obtained her I
salaries by cheques. Upon receipt, she cashed the
J J
cheques at the Yuen Long Branch of the DBS Bank,
K during which she presented the ID Card to the bank K
tellers to confirm her identity.
L L
M Mitigation M
N N
8. The defendant is now 37 years of age. She is single and came
O from a rural area in Indonesia. Back in Indonesia, she lived with her O
parents and two brothers. They were all farmers. She received primary
P P
education and used to work as a farmer as well. She first came to Hong
Q Kong to work as a domestic helper in 2008 and her employment was Q
terminated in 2011. After that, she overstayed and worked as a cleaning
R R
worker to support her living.
S S
T T
U U
V V
-5-
A A
B B
9. Defence submitted that the defendant was the main
C breadwinner of her family. After she lost her job as a domestic helper, she C
needed to stay in Hong Kong to continue to work to support her family.
D D
She is very remorseful now and she asks the court to treat her leniently. As
E there are multiple charges, defence urged the court to consider the totality E
of the sentence.
F F
G Sentencing consideration G
H H
10. For the 1st charge, the circumstances were quite serious as the
I defendant overstayed for over 3 years. Therefore, custodial sentence is I
inevitable. For the 3rd to 26th charges, the defendant used an identity
J J
belonging to another to seek employment and to cash cheques. According
K to HKSAR v Li Chang Li [2005] 1 HKLRD 865, for possession of identity K
card belonging to another, it was held by the Court of Appeal that in the
L L
absence of exceptional circumstances and upon a guilty plea, a sentence of
M 12 months’ imprisonment is appropriate. If the offender has actually M
produced the identity card to conceal his/her identity, work illegally or
N N
unlawfully further his/her stay in Hong Kong, then the starting point after
O a guilty plea should be 15 months’ imprisonment. O
P P
11. In the present case, the defendant did produce the identity card
Q to obtain the job and to cash the cheques. Therefore, for the 3 rd to 26th Q
charges, the sentence after the guilty pleas should be 15 months’
R R
imprisonment. That means the individual starting point before plea should
S be about 22 ½ months’ imprisonment. As there are altogether 24 similar S
charges, it would be more appropriate to set a global starting point.
T T
U U
V V
-6-
A A
B B
12. Considered all circumstances of the case, personal
C background of the defendant, her clear record and the mitigation put C
forward, for the 1 and 2 charges, I adopt 9 months’ imprisonment as the
st nd
D D
starting point. After giving one third discount for the guilty pleas, the
E defendant is sentenced to 6 months’ imprisonment for each charge. For E
the 3rd to 26th charges, I adopt 36 months’ imprisonment as the starting
F F
point for each charge. After giving one third discount for the guilty pleas,
G the defendant is sentenced to 24 months’ imprisonment for the 3 rd to G
26th charges. Further considered the totality of the sentence, I order all the
H H
sentences to be served concurrently. The total sentence is 24 months’
I imprisonment. I
J J
K K
L L
M ( Jason Wan ) M
Deputy District Judge
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 172/2017
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 172 OF 2017 E
F F
-------------------------
G HKSAR G
v
H H
RIRIS TRANMIATI
I -------------------------- I
J J
Before: Deputy District Judge Jason Wan in Court
K Date: 26 June 2017 K
Present: Miss Ranee Jhamatmal Khubchandani, Senior Public
L L
Prosecutor, for HKSAR/DPP
M Miss Lee Kit Ying of Lau Chan & Ko, assigned by the M
Director of Legal Aid, for the defendant
N N
Offence: [1] - [2] Breach of condition of stay (違反逗留條件)
O O
[3] - [26] Using an identity card relating to another person
P
(使用他人的身分證) P
Q Q
-----------------------------------------
R REASONS FOR SENTENCE R
-----------------------------------------
S S
T T
U U
V V
-2-
A A
B B
1. The defendant pleaded guilty to 2 counts of Breach of
C condition of stay (1st & 2nd charges), contrary to section 41 of the C
Immigration Ordinance, Cap 115 and 24 counts of Using an identity card
D D
relating to another person (3rd to 26th charges), contrary to section 7A(1A)
E of the Registration of Persons Ordinance, Cap 177. E
F F
Summary of facts
G G
2. The defendant arrived in Hong Kong on 28 February 2008 as
H H
a domestic helper and was granted extension to remain in Hong Kong on
I 17 January 2011 for a contract commencing on 8 February 2011. I
Subsequently, her employment contract ended prematurely on 30 June
J J
2011. The defendant did not apply for further extension of stay or visa for
K employment as foreign domestic helper after 30 June 2011. However, she K
continued to stay in Hong Kong 14 days after her employment contract
L L
ended and therefore she was in breach of a condition of stay that she was
M only permitted to remain in Hong Kong as a foreign domestic helper. M
N N
3. On 5 April 2013, the defendant applied for a job at a Chinese
O restaurant in Lok Ma Chau, New Territories as a cleaning worker. During O
the interview, she presented a Hong Kong Identity Card in the name of Rai
P P
Brinda (“the ID Card”). The management staff briefly checked the ID Card
Q and believed that the defendant was the bona-fide holder of the ID Card. Q
As a result, she was employed by the restaurant between 5 April 2013 and
R R
24 November 2016, earning HK$10,000 to HK$15,000 per month.
S S
4. Initially the restaurant paid the defendant’s monthly salary by
T T
cheque. Every month the restaurant issued a cash cheque to the defendant.
U U
V V
-3-
A A
B B
During the employment, a total 25 cheques were issued to the defendant.
C However, since April 2015, at the defendant’s request, the restaurant paid C
the defendant’s salary in cash.
D D
E 5. Between April 2013 and March 2015, the defendant cashed E
the cheques at the Yuen Long Branch of the DBS Bank. On 23 occasions,
F F
the defendant presented the ID Card to the bank tellers to confirm her
G identity. G
H H
6. Immigration record reveals that the ID Card used by the
I defendant belonged to another person and it was reported lost. I
J J
7. Under caution during an interview, the defendant admitted the
K following:- K
L L
(i) she was terminated on 30 June 2012 and she knew she
M had to leave Hong Kong within 14 days but she did not; M
N N
(ii) she remained in Hong Kong as an overstayer since
O O
15 July 2012;
P P
(iii) her Indonesian friend gave her the ID Card so that she
Q Q
could use it to find a job;
R R
(iv) the ID Card belonged to a person named Rai Brinda but
S S
she did not know this person;
T T
U U
V V
-4-
A A
B B
(v) On 5 April 2013, she posed as the bearer of the ID Card
C and found a job at a restaurant. She had presented the C
ID Card during the interview;
D D
E (vi) she was employed as a cleaning worker and signed an E
employment contract with a monthly salary of
F F
HK$10,000;
G G
(vii) she worked for 10 hours per day and 6 days per week;
H H
I (viii) between April 2013 and March 2015, she obtained her I
salaries by cheques. Upon receipt, she cashed the
J J
cheques at the Yuen Long Branch of the DBS Bank,
K during which she presented the ID Card to the bank K
tellers to confirm her identity.
L L
M Mitigation M
N N
8. The defendant is now 37 years of age. She is single and came
O from a rural area in Indonesia. Back in Indonesia, she lived with her O
parents and two brothers. They were all farmers. She received primary
P P
education and used to work as a farmer as well. She first came to Hong
Q Kong to work as a domestic helper in 2008 and her employment was Q
terminated in 2011. After that, she overstayed and worked as a cleaning
R R
worker to support her living.
S S
T T
U U
V V
-5-
A A
B B
9. Defence submitted that the defendant was the main
C breadwinner of her family. After she lost her job as a domestic helper, she C
needed to stay in Hong Kong to continue to work to support her family.
D D
She is very remorseful now and she asks the court to treat her leniently. As
E there are multiple charges, defence urged the court to consider the totality E
of the sentence.
F F
G Sentencing consideration G
H H
10. For the 1st charge, the circumstances were quite serious as the
I defendant overstayed for over 3 years. Therefore, custodial sentence is I
inevitable. For the 3rd to 26th charges, the defendant used an identity
J J
belonging to another to seek employment and to cash cheques. According
K to HKSAR v Li Chang Li [2005] 1 HKLRD 865, for possession of identity K
card belonging to another, it was held by the Court of Appeal that in the
L L
absence of exceptional circumstances and upon a guilty plea, a sentence of
M 12 months’ imprisonment is appropriate. If the offender has actually M
produced the identity card to conceal his/her identity, work illegally or
N N
unlawfully further his/her stay in Hong Kong, then the starting point after
O a guilty plea should be 15 months’ imprisonment. O
P P
11. In the present case, the defendant did produce the identity card
Q to obtain the job and to cash the cheques. Therefore, for the 3 rd to 26th Q
charges, the sentence after the guilty pleas should be 15 months’
R R
imprisonment. That means the individual starting point before plea should
S be about 22 ½ months’ imprisonment. As there are altogether 24 similar S
charges, it would be more appropriate to set a global starting point.
T T
U U
V V
-6-
A A
B B
12. Considered all circumstances of the case, personal
C background of the defendant, her clear record and the mitigation put C
forward, for the 1 and 2 charges, I adopt 9 months’ imprisonment as the
st nd
D D
starting point. After giving one third discount for the guilty pleas, the
E defendant is sentenced to 6 months’ imprisonment for each charge. For E
the 3rd to 26th charges, I adopt 36 months’ imprisonment as the starting
F F
point for each charge. After giving one third discount for the guilty pleas,
G the defendant is sentenced to 24 months’ imprisonment for the 3 rd to G
26th charges. Further considered the totality of the sentence, I order all the
H H
sentences to be served concurrently. The total sentence is 24 months’
I imprisonment. I
J J
K K
L L
M ( Jason Wan ) M
Deputy District Judge
N N
O O
P P
Q Q
R R
S S
T T
U U
V V