HKSAR v. CHAN Yuk-ping

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 687 OF 1997

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J U D G M E N T

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1. The applicant, CHAN Yuk-ping, a 32 year old woman, was convicted after trial of an offence of living on the immoral earnings of another person. That other person was a 24 year old woman, a prostitute, who had come from Mainland China. She was in Hong Kong on a two-way permit. She was therefore here legally, but she was prohibited from taking up any form of employment in Hong Kong.

2. The facts very briefly are that the applicant acted as the prostitute's maid in a one-woman brothel. A police officer went to that brothel posing as a customer. There were negotiations for the services of the prostitute. The applicant was paid, and the police officer then went into the bedroom with the prostitute, where he then made his excuses and left. The appellant was arrested.

3. There was only one prostitute involved, and there was no indication that she was under any form of coercion from the appellant.

4. The appellant, on 13 July 1996, had been convicted of an offence of assisting in managing a vice establishment. For that offence she received a suspended prison sentence, originally of four months, later reduced to three months on review. The suspension was for a period of 12 months. In addition, she was fined $5,000. The commission of the offence with which I am concerned took place within five months after that conviction.

5. The learned magistrate, correctly, reminded himself that there is no tariff for this offence, but that, save in exceptional circumstances, immediate custodial sentences are expected. The authorities indicate that sentences of imprisonment range from three months to 18 months.

6. So far as the suspended sentence was concerned, he saw no reason why it should not be activated, particularly as the appellant had committed a vice-related offence within five months of receiving her sentence for assisting in the management of a vice establishment. He therefore ordered that sentence be activated and served consecutively to the sentence of six months' imprisonment he imposed for the present offence.

7. So far as suspended sentences are concerned, it is well accepted sentencing practice that these should be activated, unless there are very good reasons why that should not be done.

8. Given that the appellant had five months before committing this offence committed another vice-related offence, I cannot say that the learned magistrate erred in any way in imposing an immediate custodial sentence of six months' imprisonment. It may be on the high side, but set against that, it was imposed on an offender who had offended in a similar way in the recent past.

9. Before me this morning, Mr Macrae, for the appellant, has placed a letter from the one of the appellant's sisters who lives in the mainland of China. This letter informs me that the appellant's mother is extremely distressed as a result of the appellant being gaoled. This has caused the mother's medical problems to be exacerbated, and she is contemplating suicide. It is a very moving letter, and I have no reason to doubt its authenticity, and its contents.

10. However, this letter really cannot assist the appellant. She chose to commit this offence; she knew that she had a mother in the mainland, and she knew her mother's mental and physical state. If her mother is in any way suffering, as the letter says she is, as a result of the appellant's imprisonment, then I am afraid that the appellant has only herself to blame for the suffering she has brought upon her mother. I cannot accept that this letter in any way justifies me in remitting the appellant's sentence.

11. Therefore, the appellant's appeal against sentence is dismissed.