High Court upholds sentence for working illegally

Post Date: Sep 21st, 2014 | Categories: Advocacy | COMMENT

Asylum seekers as well as recognized refugees (UNHCR or CAT) are not allowed to take up employment, but are sentenced to 15 – 22 months in prison if arrested working. It is disturbing that claimants receive no mercy in magistracy courts and no sympathy in higher courts either, as the Honourable Mrs Justice V Bokhary illustrated on 5 September 2014, “Whatever the human sympathy due to persons in the Appellant’s situation, I feel unable to say that the sentence passed in this case is out of line with the established level.”

Held in the vice of inadequate welfare and prohibition to work, refugees are crushed by a draconian process that criminalizes them for trying to make a living. It should be noted that refugees do not risk prison to buy superfluous goods, but rather to pay for essential items such as rent, utility bills, clothing and food where welfare falls appallingly short. In our view, the sentencing guidelines imposed since November 2009 overlook the impossibility of surviving on welfare alone.

The Honourable Madam Bokhary mentioned human sympathy for an appellant who was compelled to represent himself in court without a lawyer. Why did Legal Aid turn this defendant down? Was it assumed his grounds for appeal had no merit? Was he viewed as a challenger to the system? Justice was apparently served according to strict legal parameters without adequate consideration of the hardship endured by refugees who are expected to beg rather than work to survive. Is that reasonable?

It might be appropriate for the Judiciary to inquire why refugees risk lengthy prison sentences to earn a paltry daily wage (200-300$). Is such a modest reward worth such a heavy penalty? Are refugees insane as well as desperate? Could the underlying issues be more complex than simplistic goals of personal enrichment? Could work be the only options for destitute refugees to make ends meet? Unbiased investigation might shed light on an asylum policies most judges would find repulsive.

Vision First laments that current asylum policies are not fit for purpose, as they heap procedural violence and unnecessary cruelty on already vulnerable and suffering people. The Hong Kong Government should take a fresh look at the broader picture and implement a fairer policy that restores dignity to refugees who should not face jail for scraping a subsistence living. Nobody is fooled by claims that the government is doing enough to meet the daily needs of the refugee population.

An African refugee said, “Three years ago I came to Hong Kong to save my children’s life. I thought it was a place that respected human rights. I was wrong. Day after day I struggle to keep a roof over our head and buy basic things. I have many skills, but cannot work and that is extremely frustrating. It is not right to condemn refugees to begging.”

A Sri Lankan refugee said, “I am not allowed to work and don’t get enough [welfare] from the Government. If you don’t allow me to swim than you must carry me in your boat. If you throw somebody into the river with his hands tied behind his back – then you are murdering him! Hong Kong punishes refugees for seeking asylum here.”

High Court upholds sentence for working illeglaly (HCMA 380-2014)