HKSAR v. SONG HSIAU HUA AND ANOTHER

HCMA198/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.198 OF 2003

(ON APPEAL FROM KCCC 19802 OF 2002)

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J U D G M E N T

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1. This is an appeal against sentence by both appellants, they having been convicted on their own pleas on a joint charge of managing a vice establishment, contrary to section 139(1)(b) of the Crimes Ordinance, Cap.200. On 10 February of this year, both appellants were sentenced to six months' imprisonment in respect of that offence.

2. The facts of the case as found by the magistrate were that on 22 October 2002, two undercover police officers had gone to the address of a reputed brothel in the New Lucky House in Jordan Road. The 1st appellant met the undercover officers outside the suspected premises and, after asking them if they wanted girls, took them inside where both appellants then proceeded to lead a variety of women into the presence of the officers where sexual services were offered to them. Money was paid by the two officers to the appellants, and they were subsequently arrested.

3. At the time of their arrest, both appellants were on bail for previous similar offences. The 1st appellant had been arrested on 9 July 2002 for managing a vice establishment and was on court bail in respect of that offence when arrested for the present offence on 22 October 2002. At the time of her sentencing in respect of the present offence, the 1st appellant was serving a sentence of five months' imprisonment imposed on her on 5 November 2002 in respect of that earlier offence. The present sentence was ordered to be served consecutively to that existing sentence, resulting in a totality of sentence of 11 months' imprisonment.

4. In respect of the 2nd appellant, she was, at the time of her arrest for the present offence, on court bail for two previous offences of managing a vice establishment, in respect of one of which she had been arrested on 9 July 2002 together with the 1st appellant and, in respect of the other on 19 September 2002. On 5 November 2002, she had been sentenced to, respectively, seven months' and five months' imprisonment for those offences, two months of which was to be served concurrently, resulting in a totality, so far as those previous sentences were concerned, of 10 months' imprisonment. Her present sentence was ordered to be served consecutively to those previous sentences, resulting in a final totality of 16 months' imprisonment.

5. Mr Chui for the appellants does not seek to argue that the sentences of six months' imprisonment imposed on each appellant for the present offences are in themselves too severe, but he argues that those sentences should have been ordered to be served at least partly concurrently with each appellant's existing sentence or sentences of imprisonment.

6. I will deal firstly with the 2nd appellant.

7. In imposing sentence upon her for the present offence, the magistrate took into account that it had been committed whilst the 2nd appellant was on bail in respect of two previous similar offences committed by her on 9 and 19 September 2002. For that reason he ordered the present sentence to run consecutively to the existing sentences.

8. In my view, he was right to do so. The 2nd appellant had shown a complete disregard for the law and had, within a few weeks, twice committed offences of managing a vice establishment whilst on bail for an earlier similar offence. In my view, the magistrate had little option but to reflect this by imposing a sentence in respect of the present offence consecutive to the sentences being served by the 2nd appellant in respect of the previous offences : HKSAR v. Kwan Kwok Chuen (1995) 2 HKC 336.

9. The same principle must also apply to the sentence imposed in respect of the present offence so far as the 1st appellant is concerned. She too had committed the present offence whilst on bail for the previous offence she had committed on 9 July 2002. The magistrate cannot be said to have acted wrongly in principle by ordering the present sentence to be served consecutively to that existing sentence.

10. But Mr Chui argues that if the 1st appellant had been sentenced on 5 November for both offences, i.e. for the offence committed by her on 9 July and the present offence, it is very likely that at least part of her sentences for the two offences would have been ordered to have been served concurrently. That is because, says Mr Chui, on that day 5 November 2002 her co-offender, the 2nd appellant, was sentenced for the two offences of managing a vice establishment committed by her on 9 July (with the 1st appellant) and separately on 19 July and had been fortunate enough to have had the two sentences ordered to be served partly concurrently by the magistrate then sitting, even though the latter offence had been committed by her whilst on bail for the former.

11. Mr Chui argues that it is only because the 1st appellant, as a matter of procedure beyond her control, was dealt with in respect of the present offence on a different day to the first offence and by a different magistrate that she was subjected to wholly consecutive sentences.

12. It is not clear before me why the magistrate on 5 November decided to order the 2nd appellant's two sentences to be served partly concurrently. But in any event, it seems to me, that the real question is whether the present sentence imposed on the 1st appellant on 10 February 2003 is in all the circumstances proper. In my view, it is. The offence was committed whilst the appellant was on bail for an identical offence and the magistrate cannot be criticized in principle for ordering it to be served consecutively to the earlier sentence.

13. The fact that the 2nd appellant was, in similar circumstances but before a different magistrate on 5 November, fortunate enough to have her similar sentences ordered to be served concurrently so far as two months of those sentences is concerned, is not, in my view, determinative as to whether the 1st appellant was properly and fairly sentenced so far as the present sentences, the subject of her appeal, are concerned. For one thing, it may well have been that matters individual to the 2nd appellant were instrumental in the magistrate's decision on 5 November to order her sentences to be served partly concurrently. Further, the fact that one defendant has been treated favourably, even if a co-offender, is not of itself decisive as to whether the sentences imposed on another defendant are proper. In any event in my view, there is not such a discrepancy between the totality of sentences being served by the two appellants given the differing offences with each has been imprisoned for, so as to give the 1st appellant a genuine sense of grievance that she has been unfairly dealt with. There is no need to interfere with the terms of the sentences the 1st appellant is currently serving. She has been properly sentenced.

14. For these reasons, both the appellants' appeals against sentence are dismissed.