HKSAR v. YAN XIZHEN AND ANOTHER

DCCC 85/2024

[2025] HKDC 413

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 85 OF 2024

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REASONS FOR SENTENCE

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1.  In this case, the 1^st defendant, Yan Xizhen faced two counts of “Conspiracy to exercise control, direction or influence over another person for the purpose of her prostitution”, contrary to section 130(1)(b), 159A and 159C of the Crimes Ordinance, Cap 200, and also one cant of “Conspiracy to live on earnings of prostitution of others”, contrary to section 137(1), 159A and 159C of the Crimes Ordinance, Cap 200.

2.  D5 Wu Qingrong alone faced one count of living on earnings of prostitution of others, contrary to section 137(1)  of the Crimes Ordinance, Cap 200.

3.  The re-amended Summary of Facts have been read out in open court and admitted by them.  It was a long, winding, convoluted, sometimes incomprehensible amalgamation of what I suspected to be the case records of the O C Case.  Obviously, the prosecution has not had the sense to look at the charges and organise the facts that support the charges, and to rewrite a more comprehensible set of facts for this court to consider.  I think it is a miserable failure of her duty.  If it was a perfect world, I would have demanded the prosecution to make a better, more comprehensible Summary of Facts setting out all the relevant matters supporting the charge instead of throwing everything at a wall to see whatever sticks.

4.  I would stress that this court’s duty is not to pick and choose whatever the prosecution throws at me.  However, I do understand that if I insist the prosecution to do her job, it will take much longer and it will be a further waste of public money and time, and further add to agony of the defendants.  I therefore settle with myself, summarising all the relevant bits to the case myself, and then asking the defendants if they agreed.  On this basis, the defendants are convicted upon their plea and their admissions of the facts.

5.  Both the 1^st and 2^nd conspiracy charges, involved a Thai national, whom I shall refer to as “X” and “Y”, and jointly as “victims”.  They have been recruited to come to Hong Kong on false pretences.  It was an international operation in human trafficking and forced prostitution.

6.  Charge 1, victim, X, contacted a person online in response to an ad in the internet. She was offered a job as a masseuse and was told that she could apply a work visa upon her arrival in Hong Kong.  She was then arranged to take a plane to Macau after a brief 2 day transit, took a ferry to come to Hong Kong on 7^th February.

7.  She was furnished a return ticket to Bangkok and booking confirmation of a hotel in Hong Kong to show to the Hong Kong immigration officers that she was a genuine tourist.  She was also instructed on how to carry herself in order to convince the immigration officers.

8.  Upon her arrival, she followed instructions via an App in her telephone, and took a taxi to a flat in Temple Street, Flat 1.  She was made to stay inside a room, where she was locked up and was subsequently told that she had to provide sex services to males.  The payment from the first 50 customers would be used to defray the expenses of her accommodation in Hong Kong and her passage to Hong Kong.  Thereafter, she would receive $100 for each customer. When she refused, she was scolded at and was told that she would have to start working the next day anyway.

Charge 2

9.  The victim was another Thai national ‘Y’.  In early February 2023, through an ex-relative of hers, she was offered a job as a masseuse in Phuket. It was only after she arrived at the airport that she was told she was going to Hong Kong.  She arrived in Hong Kong as a visitor and was instructed to take a taxi to go to a flat in Yau Ma Tei, Temple Street, hereinafter called “Flat 2”.  She was then locked up in one of the rooms in Flat 2.

10.  Subsequently, through her contact she was instructed to both provide massage and sex services to customers.  She refused, but her pleas was ignored.  She was locked up in that room for the night.  On the next day, the 1^st defendant and another person took X from Flat 1 to Flat 2 to keep Y company.  They were locked up in the same room in Flat 2.

11.  Later, the contact asked Y to provide sex services.  Y refused.  The same person contacted X again, making the same request.  X again refused.  Later in the afternoon, through her boyfriend in Thailand, Y managed to get in touch with the Consul General of Royal Thai Consulate-General in Hong Kong and a report to police.  At 4 pm, the police managed to find Flat 2 and release the victims.

D1’s Role

12.  D1 was arrested later in the same day outside on the street near Flat 1.  She was arrested for false imprisonment.  The police found on her person, cash $2,940 and the door keys to Flats 1 and 2.

13.  Under caution, D1 admitted the following: she was recruited as a procurer of clients and bring the same to Flat 1.  She worked from midday to 11 pm since 24 January 2023.  The clients would pay D1 $250 for services rendered and she would keep $45 as her own remuneration and put the remaining money into a drawer at Flat 1.

14.  At about 7 pm on 7 February 2023, the dependent was instructed to pick up X and pay for her taxi fares.  She took X to Flat 1 and arranged for her to stay in one of the rooms.  On the next day, D1 and another person brought X to Flat 2 to join Y.  The keys to both Flats 1 and 2 were given by other people.

15.  The money on her, namely ($2,940)  was her earning from working as a procurer.  On D1’s phone, it was found that there was a chat group to which a number of persons, including the person giving X the instruction to work as a prostitute.  That person in that chat group instructed X to do her make up like a normal sightseer to Hong Kong.  Together with the instructions to X for other logistics after she arrived in Hong Kong.

16.  D5 was arrested on 13 February 2023.  In a subsequent cautioned interview, she admitted that she worked at Flat 2 since mid-December 2022 to January 2023, responsible for bringing customers to the Thai prostitutes working therein.  Her job also involved taking money from the clients.  Of the $250 received from each client, she would keep $45 as her own remuneration and the rest to be handed to another person after work.

17.  She was part of the chat group with other persons involved in the operation.  In Flat 1 and Flat 2, the police found towels, condoms, lubricants, and toilet paper, together with a notebook where records of timing were made.

Sentencing

18.  Conspiracy is a common law offence for which the quantum of sentence is dependent on the substantive offence.  Controlling a prostitute and living on earnings of a prostitute both warrant a maximum sentence of 14 years and 10 years. My attention had been drawn to a Court of Appeal case of Tam Ka Chun Danny, CACC 406/2010, where, the Court of Appeal instead of setting out a guideline for sentencing, identified some indicia to be considered in setting the proper sentence.

19.  From the evidence, I considered the following matters relevant.  The present offences are but part of the elaborate international human trafficking and forced prostitution syndicate.  There were two Thai nationals involved who had been, from the facts admitted, deceived into coming to Hong Kong, as they were also led to believe that they were here to work as a masseuse.

20.  It was only after coming to Hong Kong that the truth was revealed that they had to work sex workers.  When both indicated their objections, they were detained against their will.  They were threatened that they would be forced into provided sexual service on the terms dictated by the perpetrators.

21.  In the case of X, she was arranged to come to Hong Kong in a rather convoluted way she was instructed to mislead the immigration officers.  In the case of Y, she was initially offered a job as a masseuse in Phuket Island, Thailand.  It was only after her arrival at the airport that she was told that she was coming to Hong Kong.  Both were told that they were to provide sex service when they arrived in Hong Kong, and both were detained against their will.

22.  I note that in the case of D1, there was no evidence that she was responsible for arranging the passage of X or Y to Hong Kong or responsible to be a major operator.  Of course, she was working as a pimp, a procurer for clients for the prostitutes.  She was also responsible for taking, at least in the case of X, to the place of her confinement after her arrival in Hong Kong.

23.  From the fact that she was a member to this chat group where details of the victims’ arrival and arrangement for their accommodation were revealed, she must have been fully aware that both X and Y were from Thailand, they were prostitutes, they were here to provide sex service, and there was some indication that they were unwilling.

24.  All three charges are conspiracy.  There was evidence that she was aware of the arrangement and the plan, her criminal liability, strictly speaking, were equivalent to other participants.  I cannot ignore the fact that she was basically a foot soldier responsible for carrying out the scheme of things.  I would consider that, in her case, a total sentence of 18 months would be a proper starting point.

25.  Since the scheme and the offences took place within the same short period of time, I consider that it should be viewed as one single transaction, and I order that for each Count 1, 2, and 5, she should be sentenced to 18 months to run concurrently.

26.  The 1^st Defendant is aged 52 with six previous criminal convictions, four of them were gambling charges.  They were not of a similar nature and I would not increase her sentence by reason of the same.  On the other hand, she would not be able to rely on her lack of previous and young age to expect this court to exercise discretion of more leniency.  The only relevant mitigating factor is that she has pleaded guilty to all the charges.  I would therefore adjust her sentence down to 12 months.

27.  I have also considered other background information and I do not see any other relevant matter for which I can exercise further discretion of leniency.

D5

28.  Although there is some evidence to suggest that she as aware victims were detained against their will, I am prepared to give her the benefit of doubt, that she was only working as a procurer of clients for the prostitutes.

29.  From the evidence in the amended Summary of Facts, she was not in Hong Kong when the two victims were arranged to come to Hong Kong.  I also take into account of the fact that she had no previous conviction of a similar nature. Therefore, I consider 15 months a proper starting point in her case.  It is reduced to 10 months to reflect her plea of guilty.

30.  I also have taken into consideration of the background information and the mitigation letter given on her behalf.  I do not find any other reason to exercise further discretion of leniency.  Therefore, D5 is sentenced to 10 months’ imprisonment.