HKSAR v. NG CHI MING

HCMA362, 363 & 364/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.362, 363 & 364 OF 2000

(On Appeal from NKCC398, 409 OF 2000 & 7700 of 1999)

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J U D G M E N T

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1. The appellant was charged, in separate cases, with three different counts of Managing a Vice Establishment, contrary to section 139(1)(b) of the Crimes Ordinance, Cap.200, Laws of Hong Kong. The particulars alleged:

(1) In NKCC 7700/99

that on 24 November, 1999 at Shop Name : Lam Po Finger Cure, (1/F, including portion of flat roof, No.167 Tung Choi Street, Kowloon), in Hong Kong, the appellant managed the said premises which were kept as a vice establishment.

(2) In NKCC 409/2000

that on 12 January 2000 at all that portion of flat roof and Flat A, Floor 1, Shop Name : Mei Lui Shing, 1 Thistle Street and 21, 21A, 23-27 Shantung Street, Mongkok), in Hong Kong, the appellant managed the said premises which were kept as a vice establishment.

(3) In NKCC 398/2000

that on 18 January 2000 at Shop Name : Mei Lui Shing, (1/F all that portion of flat roof and flat A, No.1 Thistle Street and 21, 21A, 23-27 Shantung Street, Kowloon), in Hong Kong, the appellant managed the said premises which were kept as a vice establishment.

2. The appellant pleaded guilty to the charges and the learned magistrate imposed a concurrent term of six months for the offences. The magistrate also ordered a total sum of $40,000 as fines for the cases of NKCC7700/1999 and NKCC409/2000. The appellant now sought leave to appeal against the financial penalty.

3. In the Reason for Sentence, the magistrate pointed out that these kind of offences are prevalent and such establishments tend to encourage overstayers to do prostitution work. He also referred to the fact that the appellant had committed similar offences within a short period of time. The magistrate then adopted nine months as the starting point and gave the usual discount of one third. A concurrent order was imposed and hence the sentence was six months. While the calculation was correct in relation to NKCC398/2000 and NKCC409/2000, the transcript showed that there was an obvious error regarding the case of NKCC7700/1999. The sentence imposed in that case was actually four months. As the magistrate found that the only mitigation was the plea, therefore the starting point for NKCC7700/1999 could not have been nine months as stated in the Reason for Sentence. However, I would merely point this out for the purpose of clarifying the record. The appellant was not taking the point as he intended to argue against the fine only.

4. On the merits of the appeal, I noted that the learned magistrate had not, in his Reason for Sentence, explained why he imposed the financial penalty, and before he made the order, he had not ascertained from defence counsel whether the appellant consent to the fine being taken directly from the cash bail. Regarding this approach, there has been a line of authorities stating that such a direct bench order of "fine/costs to be taken from cash bail" was inappropriate and furthermore, in some cases, there are special factors to be considered by the sentencing magistrate before imposing a fine.

5. Yeung J held in HKSAR v. Lee Pui Lam & Another (HCMA1050/1997) that "generally speaking, if a defendant was given a custodial sentence, there was no need for any other pecuniary penalty, unless it was for the purpose of preventing him from gaining from the crime." And in HKSAR v. Lau Pak Ying (HCMA636 and 637/1997) Yeung J again pointed out, inter alia, that :

"(1) Courts should not impose fines which were beyond an accused's ability to pay or which were financially crippling to an accused. The fact that an accused was able to put up a large sum in cash as bail money did not necessarily mean that he could afford a fine of the same amount.

(2) In this case the magistrate had not made any inquiry as to D's financial capability when his background clearly indicated that he probably could not afford a heavy fine. In failing to make such inquiry the magistrate fell into error."

6. In light of these authorities, and also considering the decision by Bewley J in R v. Tang Wing Sum (MA1665 of 1988), I could find no justification in upholding the financial penalty imposed.

7. However, the respondent had made the observation that the appellant should first seek a review so that the magistrate could remedy the procedure instead of taking the matter directly on appeal. It was said that it should be defence counsel's duty to assist the magistrate in this regard and it would be a waste of resources for the defence to remain silent at the time of sentence and then raise the issue as a ground of appeal. The criticism may well be a valid one. But if the appellant, in these circumstances, takes advantage of the appeal procedure instead of applying to the magistrate for a review, I cannot say that he is, legally, not entitled to do so. There could be tactical reasons why the defence does not wish to seek a review before the magistrate.

8. In the present case, the appellant chose to appeal on the sentence out of time and tried to focus only on the fine. If this were a calculated way on the part of the appellant to avoid the possibility of having the imprisonment increased on appeal, he would be running a risk, as I tend to think that an appellant could not just single out one aspect of the sentence for the purpose of the appeal and assume that the appellate court could never touch the other aspects. But as this point was not argued before me, I would not pursue it further.

9. In view of the background of this case, the terms of imprisonment imposed by the magistrate were actually very lenient. One might think that the magistrate had decided to give shorter, concurrent terms in view of the financial penalty that he was also imposing. Unfortunately, the magistrate had not explained this aspect clearly.

10. For the above reasons, I had quashed the financial penalty imposed by the learned magistrate. The money would be returned to the appellant. The appeal is allowed to that extent.