HKSAR v LUNG CHI WAI, STELLA

DCCC 624/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 624 OF 2012

____________

REASONS FOR SENTENCE

1. D2 pleads guilty to one charge of being the tenant of Flat C, 1/F, Kin Ming Building, No 31, Ta Chuen Ping Street, New Territories permitted the premises to be used for purposes of habitual prostitution, contrary to section 145 of the Crimes Ordinance, Chapter 200 (charge 3).

2. In summary between November 2009 and December 2011 the defendant rented the premises from Lam Man Yim (D1) at the monthly rental of $8,400.  The premises were partitioned into three rooms, which the defendant under caution admitted she sublet to prostitutes for a total monthly rental of about $10,000.  I am told today by Mr Fung that the defendant said in her interview the rent was $3,200 per room.  Mr Ma informs the court that the defendant in her interview variously said the rent was $3,100 per room; $3,200 per room and the total rent was about $10,000.

3. At the outset I wish to stress that the defendant is to be sentenced on the single charge to which she has pleaded guilty, a charge which is less serious than the conspiracy to which the other defendants have already been sentenced.  Notwithstanding that at the trial of D7 evidence was given by D1 as to the involvement of the defendant in that conspiracy the prosecution had earlier reached agreement with the defence whereby they accepted a plea to charge 3 only.  

4. In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Fung together with the letters from the defendant’s ex husband and brother-in-law and the content of the background report.  I take into account the defendant is a person of previous good character and although the custody of the two children of the marriage was granted to the ex-husband the defendant has fulfilled her responsibility in the upbringing of the children, both of whom are still at school.  I also take into account the recent health condition of the defendant as particularised in the reports of Dr Gan and Diagnostix Pathology. 

5. There are no guideline sentences for offences of a tenant permitting premises to be used for purposes of habitual prostitution.  Mr Fung refers me to two cases. First HKSAR v Lai Kam Fung HCMA 317/1997, a case concerning a tenant permitting premises to be used for a vice establishment.  This is an offence contrary to section 144 of the Crimes Ordinance and carries the same maximum sentence as an offence contrary to section 145.  The appellant in that case had pleaded guilty and was sentenced to 2 months imprisonment and a fine of $5,000.

6. The court on appeal emphasising there was no evidence that the appellant had been involved in any other aspect in connection with the vice establishment, apart from being the tenant and thereby obtaining the difference between the rentals as profit, substituted a suspended sentence.  The court also said a fine which deprived the appellant of any profit she made should also be imposed.

7. This case was however heard before the increase in the maximum sentence in 1998 from 2 years to 7 years.  In HKSAR v Lam Yin Har HCMA 818/2003 an immediate prison sentence was upheld for offences of a tenant permitting premises to be used for a vice establishment.  In dismissing the appeal the distinction drawn in Lai Kam Fung between a mere tenant and a tenant who is also involved in running the vice establishment was again made (see paragraph 13 of the judgment). 

8. The second case cited by Mr Fung is HKSAR v Siu Miu Hing HCMA 1056/2000 where the defendant was convicted after trial of one charge of a tenant permitting premises to be used for purposes of habitual prostitution.  A sentence of 3 months imprisonment was suspended on appeal together with a fine of $14,000.  The judgment is brief however it would appear that the grounds the appeal was allowed was that the appellant gave up the tenancy she occupied for the use of habitual prostitution and had spent a brief period in custody. 

9. In my view, although the defendant was not directly involved in the running of the prostitution business, the present case is more serious than the three cited cases in that the period the offence took place is much longer, namely 22 months whereas in the cited cases from the judgments the periods would appear to be from one day to 3 months. 

10. I am satisfied the proper starting point after trial is one of 9 months imprisonment.  Giving the defendant full credit for her plea of guilty reduces the sentence to 6 months imprisonment.  Taking into account there is no evidence the defendant was directly involved in the running of the prostitution business; as confirmed by Mr Man at the last hearing that without the confession of the defendant the prosecution would not have been able to proceed on this charge; and the health of the defendant coupled with the plea of guilty and clear record, I am satisfied there are exceptional circumstances warranting suspension of the sentence.

11. The defendant is convicted and sentenced to 6 months imprisonment suspended for 2 years. There will also be a financial penalty which ensures the defendant does not benefit from her crime.  On the basis the rental was somewhere between $9,300 and about $10,000 the profit made by the defendant was between $1,000 and $1,600 per month.  The offence covering 22 months makes a total profit of between $22,000 and $35,200.  In the circumstances I am satisfied the proper fine is one of $35,000, which the defendant consents to be taken from her bail money.