HKSAR v. CHAN CHUNG POR

[English Translation – 英譯本]

HCMA 1053/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1053 OF 2005

(ON APPEAL FROM KTCC NO. 6890 OF 2005)

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BETWEEN

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JUDGMENT

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1. The Appellant pleaded guilty to one count of managing a vice establishment, contrary to section 139(1)(b) of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong, and one count of displaying a sign to advertise the services of a prostitute, contrary to section 147A(1) of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong.  He was sentenced to 4 months’ imprisonment and a fine of $15,000 respectively.  He now appeals against sentence.

2. On the facts admitted by the Appellant in court, two police officers posing as customers arrived one after the other at the premises named “Romantic Massage”.  They were received by the Appellant.  After negotiating the price, the Appellant arranged two prostitutes from the Mainland to provide sexual services to the police officers.  Subsequently, other police officers arrived and arrested the Appellant.

3. At the interview with the police, the Appellant admitted that his role was to receive customers and arrange prostitutes to provide sexual services to them, at a charge of $390 each.  He had only worked for 5 days, earning $200 per day.  The Appellant also publicly displayed, at two locations near the premises, two plastic signs, each with “280” written in red and “Romantic Massage” written in green.  Both signs may reasonably be understood to advertise services provided by prostitutes with a view to attracting customers to the above premises.

Grounds of appeal

4. The Appellant’s ground of appeal is that the sentences are excessive and a custodial sentence and a fine are rarely imposed for these types of offences.  Counsel for the Appellant submits that there were no aggravating factors in the present case and that the Magistrate should not have arbitrarily considered the prevalence of these offences in the absence of evidence or statistics.  Counsel also points out that the immoral industry in Hong Kong has gradually gone downhill since 2005 and that the prosperity that the industry used to enjoy is no longer to be found.

5. In his written submission, Counsel cites the cessation of business of Tonnochy and China City Night Clubs as illustrations that the immoral industry in Hong Kong is on the decline.  Counsel submits that the Magistrate’s observation that the local prostitution business is flourishing does not reflect the reality.

6. Counsel for the Appellant also cites the case of HKSAR v. Sung Kwong Ngai,HCMA 1160/2004.  The appellant in that case, who was charged with managing a vice establishment, was originally sentenced to 8 months’ imprisonment by the magistrate.  On appeal, Deputy Judge Line reduced the sentence to 4 months’ imprisonment, suspended for 2 years.  Relying on that case, Counsel for the Appellant contends that a 4-month imprisonment and a $15,000 fine are manifestly excessive for a defendant with no previous convictions.  Counsel also submits that the Magistrate overlooked the totality principle in sentencing.

The Respondent’s reply

7. Regarding Charge 1, the Respondent submits that, according to the relevant decided cases, the terms of imprisonment for the same type of offence range from 3 to 18 months, with 3 to 6 months’ imprisonment being the most common.  Therefore, the 4 months’ imprisonment imposed by the Magistrate on the Appellant is neither wrong in principle nor manifestly excessive.  As regards Charge 2, the maximum penalty is a fine of $100,000 and 12 months’ imprisonment.  The $15,000 fine imposed on the Appellant is therefore not excessive.  Furthermore, this sentence has taken into account the Appellant’s ability to pay the fine and is therefore not wrong in principle.

Judgment

8. The Magistrate correctly pointed out that, for the offence of managing a vice establishment, even where an offender has a clear record, the usual starting point is 6 months’ imprisonment.  This is supported by decided cases, and I now set out the various cases in chronological order of delivery of written judgment:

(1)   In R v. Kwan Wah Sang, HCMA 1324/1988, Yang CJ said:

… for custodial sentences the range appears to be 3 to 18 months, the most common being 3 and 6 months’ imprisonment.

(2)   In HKSAR v. Ng Tsz Fung, HCMA 800/1998, in which the appellant had a clear record, Nguyen J applied the Kwan Wah Sang case and ruled that a starting point of 6 months was appropriate;

(3)   In HKSAR v. Lee Tang Yau, HCMA 602/2001, which involved what Beeson J regarded as an aggravating feature, namely that the vice establishment engaged 8 prostitutes who were illegal immigrants, Beeson J considered a starting point of 12 months correct;

(4)   In HKSAR v. Cheung Chiu Choi (張招財) & Anor, HCMA 531/2003, in which the establishment was an organized operation but did not involve aggravating factors such as illegal immigrants or young prostitutes, Deputy Judge Barnes analyzed the Ng Tsz Fung case and considered a starting point of 12 months appropriate;

(5)   In HKSAR v. Ng Ying Tsing (吳膺青), HCMA 706/2003, in which the appellant had a clear record and had worked at the establishment in question for 6 months, Deputy Judge Toh ruled that the appropriate starting point was 6 months;

(6)   In HKSAR v. Ha Hau Kwan Fong (夏候群芳), HCMA 1238/2003, in which the appellant had a clear record, Deputy Judge Toh held that, as the case involved an aggravating feature – namely prostitutes holding two-way permits – and the subject establishment was of considerable scale, a starting point of 8 months was correct;

(7)   In HKSAR v. Yu Chung Ming (余仲明), HCMA 63/2004, although the Appellant had a previous conviction record, it was for an offence of a different nature from that involved in the case.  Deputy Judge Toh ruled that a starting point of 9 months was excessive but not manifestly so;

(8)   In HKSAR v. Lam Sze Kee (林詩琪) & Anor, HCMA 1249/2004, the appellant was charged with assisting in the management of a vice establishment which operated on a substantial scale.  The Magistrate adopted 12 months as a starting point and reduced the term to 8 months on account of the Appellant’s guilty plea.  Deputy Judge To held that the starting point of 12 months was not improper.

Deputy Judge To said this after analyzing the precedent cases:

It can be seen from the cases of HKSAR v. Lee Tang Yau and HKSAR v. Cheung Chiu Choi & Another that the courts generally agree that the starting point for the offence of managing a vice establishment should be 12 months’ imprisonment.  In my view, in determining the starting point, the magistrate should consider factors such as the scale of the relevant vice establishment, its modus operandi, the sexual services it provided, the floor area of the premises, the number of employees, the number of prostitutes, the number of customers, the fees charged, the profit earned and the sales figures.  Vice establishments usually hire fewer than 5 employees and fewer than 10 prostitutes and have a relatively simple mode of management.  For the offence of managing a vice establishment of this scale, the appropriate starting point should in my view be 12 months’ imprisonment. It is open to the magistrate to determine the appropriate starting point having regard to the size and modus operandi of the relevant vice establishment.  Furthermore, the magistrate may consider increasing the starting point if there are other aggravating factors such as the age of the prostitutes being hired, whether they are illegal residents, and whether they are employable in Hong Kong.  The starting point for the offence of assisting in the management of such vice establishment may be lower than that for the offence of managing it, but it all depends on the nature and extent of the assistance provided by the defendant.

9. In fact, the cases of HKSAR v. Sung Kwong Ngai,HCMA 1160/2004 and HKSAR v. Lam Sze Kee & Anor,HCMA 1249/2004 both involved the same establishment and same “Flamewood Operation”, but the sentences imposed were rather different.  Deputy Judge Line clearly stated in his judgment that the prosecution’s practice of splitting up a case involving multiple defendants into separate individual cases which were then handled by different judges was unwise and would lead to inconsistencies in sentencing.  The background to the undercover operation was succinctly described by Deputy Judge Line in his judgment in the former case:

… 27 vice cases arose out of this operation.  It involved over 70 people.  Of the 27 cases, 19 resulted in Defendants being given suspended sentences of imprisonment … in 6 of the cases people received short terms of imprisonment and in nearly all cases – not quite all but nearly all – less than the 8 months in this case.  Most of the prosecutions were for managing a vice establishment …

He continued:

Part of the problem of having some people sent to prison and some people receiving suspended sentences was promoted in this case because the prosecution chose to bring a whole number of small prosecutions … Sentencing is much fairer if the sentencer has the whole picture, so let us hope in future that, if there are similar prosecutions, cases are grouped together and brought together sensibly to deal with each set of premises involved.

10. In my view, Sung Kwong Ngai is a unique case and deviates from the current trend of imposing an immediate custodial sentence for this type of offence.

11. The Appellant’s submission in his Grounds of Appeal that it is not necessary to impose an immediate custodial sentence for this type of offence merely reflects his ignorance and misunderstanding of the law.  In fact, the present case involves prostitutes holding two-way permits, which constitutes an aggravating factor.  In HKSAR v. Lee Tang Yau, HCMA 602/2001, Beeson J stated:

The use of illegal immigrants in cases of this nature was an aggravating feature.  As long as vice establishment were prepared to offer places for illegal immigrants to live and to work as prostitutes, they would avail themselves of that opportunity by crossing the border.  The problem that arose then was not solely a vice problem, but also one of immigration.

12. Everyone knows that a person entering Hong Kong on a two-way permit is prohibited from take up employment in Hong Kong.  As mentioned above, those who manage a vice establishment are providing employment opportunities to these people who cannot work in Hong Kong, enticing them to work here and take the risk of breaching their conditions of stay.  In this respect, those who hire two-way permit holders to work as prostitutes at a vice establishment are no less culpable than those who hire illegal immigrants to work as prostitutes at a vice establishment.

13. In Cheung Chiu Choi, Deputy Judge Barnes made it clear that if a certain type of offence becomes increasingly rampant and prevalent in a certain area, the court may impose a heavier sentence accordingly in order to deter potential offenders and wipe out such offence.  A sentencing magistrate is entitled to take into account whether a certain type of offence is becoming rampant and prevalent within his jurisdiction.  The reference by Counsel for the Appellant to the closing down of two nightclubs and to Hong Kong people going to the Mainland or Macau for immoral services cannot be regarded as an indication of the decline of the prostitution industry.  Such a statement is sweeping and has little bearing on the prevalence of the industry at the district level.

14. In light of the abovementioned case law, and in view of the fact that the present case involves prostitutes holding two-way permits, the starting point of 6 months adopted by the Magistrate is not at all excessive.  Furthermore, it can be seen that in cases such as Ng Tsz Fung andNg Ying Ching, a fine was imposed in addition to an immediate custodial sentence.  In the present case, the Magistrate has taken a very lenient approach in sentencing the Appellant to 4 months’ imprisonment only.

15. As regards Charge 2, the maximum penalty is a fine of $100,000 and 12 months’ imprisonment.  The Magistrate considered the Appellant’s ability to pay the fine and agreed that the sum be deducted from the recognizance.  The fine of $15,000 is in my view appropriate and has not deviated from the established practice for this type of offence.

16. The appeal is dismissed and the sentences imposed by the Magistrate are affirmed.