Fine of $5,000 was not unusual or cruel, Grand Court rules
A former consultant to the Ministry of Health has lost his appeal in Grand Court against a conviction for overstaying and a fine of $5,000.
Justice Malcolm Swift released his reasons last week for dismissing the appeal of Joseph Bonsu-Akoto, who had pleaded not guilty in Summary Court to the charge of remaining in Cayman after his permission to do so expired on Sept. 25, 2009. The defendant was charged in February 2012 with overstaying from 2009 to Sept. 7, 2011.
Magistrate Kirsty-Ann Gunn found him guilty in December 2012 and passed sentence in February 2013. She said there was nothing in his records or passport to indicate express permission to stay in Cayman.
During his trial, the defendant told the court he thought he did not need express permission because he had an entry permit and he wasn’t going to challenge a senior government official who had said he didn’t need a work permit. He said he believed he had a continuing right to stay and work.
The magistrate described Mr. Bonsu-Akoto as highly educated; according to his resumé, he was a chartered accountant. By his own admission, he was familiar with the Immigration Department; he came to the Cayman Islands in 2001 as a tourist; there were times he left the island and returned within days with a fresh visitors visa. The magistrate pointed out that Mr. Bonsu-Akoto had received 13 extensions from the Immigration Department. “The court is satisfied he was well aware of the need to have his papers in order,” she said.
It was undisputed that he was a consultant to the Ministry of Health at some point. During his appeal, he told Justice Swift that he was hired as a consultant and was given a letter every three months to take to Immigration.
The judge asked if he was being required to keep his passport up to date. “Yes, in that particular job,” he replied.
Justice Swift said he agreed with the magistrate that Mr. Bonsu-Akoto had considerable past experience complying with Cayman’s immigration requirements. He found that the defendant knew he was not entitled to reside and remain after 2009.
Mr. Bonsu-Akoto provided the court with copies of reports he said he had written at the request of other ministries. He also provided copies of two emails apparently dated February 2013 from the Ministry of Finance. Justice Swift described these as answers to emails from Mr. Bonsu-Akoto “in which he was claiming payment for services, and a counter offer in full and final settlement of all claims against Government.”
The judge pointed out that these were not relevant to the question of overstaying.
All the evidence produced during his trial showed that Mr. Bonsu-Akoto did not have permission to remain on the island after 2009 and he was not employed by the government as defined by the Immigration law. At his sentencing, the magistrate stated specifically that she had rejected his assertion that he was employed by government or a political party or a particular politician. She concluded that he believed he would not be given further extensions and therefore did not go back to immigration.
Mr. Bonsu-Akoto had argued he was a government contractor, but both courts rejected this contention.
For whatever reason, the defendant placed little reliance on the fact that he was married to a Caymanian. Spouses of Caymanians may apply for a Residency and Employment Rights Certificate, which the defendant apparently did not do. He also rejected an administrative disposal, choosing to go to trial.
Justice Swift concluded that he could find no valid reason to interfere with the magistrate’s decision, which he said was “a lengthy, carefully reasoned and clear judgment setting out the issues, arguments and evidence with admirable clarity.”
The judge also concluded there was no need for a rehearing because Mr. Bonsu-Akoto agreed that all the evidence had been called in Summary Court and he had every opportunity to cross-examine witnesses, call witnesses and address the court on all issues.
As to the fine, he pointed out that the offense carries a maximum sentence of five years’ imprisonment and/or a maximum fine of $20,000. The judge agreed that this offense crossed the custody threshold, but Mr. Bonsu-Akoto’s personal mitigation was sufficient to make a prison sentence unnecessary.
The mitigating factors considered by the magistrate included the defendant’s age, 60, his previous good character, his work as a lecturer that had assisted many individuals, the financial hardship caused by not being allowed to work while his case was in court, the emotional hardship, and the fact that a conviction would affect his professional standing.
The magistrate indicated that, in all the circumstances, a significant fine would send a strong message that the offense of overstaying would not be tolerated. Justice Swift agreed that the sentence was neither cruel nor unusual.