 |
| High Court judge confirms Filipina's conviction. |
A Filipina’s appeal against conviction for two charges of breach of condition of stay
has been dismissed by a Court of First Instance judge who ordered her to now serve
her 12-month sentence.
“The appeal is dismissed.
The sentence of the Magistrate stands.
The appellant must return to carry out her sentence forthwith,” said Judge
Audrey Campbell-Moffat in a decision released Friday by of the High Court.
Jasmin Andaya, a former domestic helper and former wife of a
Hong Kong resident, had been convicted of overstaying from October 2005 until
she was arrested on Jan 2, 2020 in an Immigration raid on a restaurant in Tai Hang,
and of illegally taking up employment as an odd job worker in that restaurant.
For the first charge, she was sentenced to 12 months in jail
by Magistrate Frances Leung at the Shatin Magistrates’ Courts; for the second,
she was sentenced to three months. Both sentences will run at the same time.
The judge supported
the magistrate’s conclusion that Andaya had overstayed,
“The learned
magistrate analyzed the evidence in a simple and straightforward manner…. The appellant, was, as a matter of fact, an
over-stayer who was not allowed to work.
There was no evidence before her to suggest otherwise,” Judge Campbell-Moffat
said.
“She found, contrary to the defence case, that the appellant, on her own
admission, knew that she had been a visitor in Hong Kong but had overstayed and
that she was not allowed to work.”
She dismissed Andaya’s
claim to have paid income taxes to prove that she believed she could lawfully
work and that she was allowed to remain after October 2005. “The argument that
she had paid salaries tax did not affect her status as a visitor nor her
conditions of stay. She remained in
breach of them.,” the judge added.
The case began when Andaya was arrested in a raid by
Immigration officers on Jan 2, 2020 on Palki Restaurant on Tsing Fung Street,
Tin Hau. She failed to present identity documents but a check with the
Immigration Department database showed that she had been overstaying since 2005.
The Immigration officer who arrested her testified that she admitted
she worked at the restaurant as a waitress and said she had done so for less
than a year. She maintained that she was
paid $400 per day.
In the recorded interview that followed, where Andaya was
assisted by an Ilocano interpreter, she admitted that Immigration refused her
application for a dependant visa after she and her husband separated and he refused
to sponsor her.
She thus became a visitor and was allowed to stay in Hong
Kong until October 2005. “I knew I
cannot work in Hong Kong. I should leave
before October 2005,” she said in the recording.
She added that she stayed in because she was hoping she and
her husband would reconcile. She has
since lost her passport and Hong Kong ID card, and did not replace them,
Judge Campbell-Moffat also dismissed Andaya’s lawyer’s assertion
that because she lied about having worked at the restaurant for less than a
year, when she had in fact worked there since 2014, all her other admissions should
therefore be treated as lies.
The lawyer did not present
evidence or submissions to disprove that she was overstaying from
October 2005 onwards, she said.
“The applicable law
is trite. Section 41 of the IO
(Immigration Ordinance), Cap 115 (“s41”), requires the prosecution to prove
that the appellant was subject to a condition of stay which was contravened and
that the appellant knew of the relevant condition,’ she said.
.jpg)
.jpg)
