HKSAR v. LAI CHI FAI DAVIDSON

HCMA 91/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.91 of 2010

(ON APPEAL FROM KTCC145 OF 2010)

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BETWEEN

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JUDGMENT

1.  The appellant was convicted on his own plea of one count of Managing a Vice Establishment, contrary to section 139(1)(b) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong and was sentenced to 12 months’ imprisonment. He now appeals against his sentence.

Facts

2.  In the small hours of 9 January 2010, three prosecution witnesses (PW2 to PW4), being undercover police officers and disguising themselves as customers, arrived at the premises involved in this case, which were situated in Shanghai Street, Kowloon.  The appellant recommended certain sex services to them and finally it was agreed that such sex services would be arranged for them at the price of HK$390.  The appellant took three women, who were the three co-defendants of this case (D2 to D4) to different cubicles.  PW2 to PW4 revealed their identities when the woman defendants were taking off their clothes and then they waited for other police officers to come.

3.  Subsequently, the police found that the premises consisted of a reception room and 16 cubicles.  The total area was 160 square metres and they occupied two storeys.  The appellant admitted under caution that he was the person who managed the premises and that his duties were to attend to customers and arrange sex services for customers.

4.  Furthermore, the police found three more prostitutes on the premises, i.e. D5 to D7 of this case.  All of them, including D2 to D4, came from the Mainland and were allowed to stay in Hong Kong for 7 days as visitors.  By working as prostitutes on these premises, they committed the offence of Breach of Condition of Stay as well.  Lastly, the police found 29 condoms in the search they conducted on the premises.

5.  The above was basically the facts admitted by the appellant.

Sentencing at the trial

6.  The trial magistrate gave the following explanation as to why he imposed the 12 months’ imprisonment:

“2.	Before passing sentence, I took into account the following:
a)	The defendant pleaded guilty.
b)	The size of the premises – occupying two storeys, a total of 16 cubicles, total area was about 160 square metres.
c)	The defendant was able to arrange 6 women for providing sex services.
d)	Although the 6 women were allowed to stay in Hong Kong as visitors, I am not clear whether the defendant was aware of their status. Otherwise, this will be an aggravating factor.
e)	The defendant is not a first offender and I will not treat him leniently as such. The defendant had time after time committed different kinds of offences and had been sent to prison. A total term of 36 months (DC/10/04, criminal record item 7) followed by a total term of 20 months (E/3600/07, criminal record item 9) failed to lessen his desire to commit crimes.
f)	The defendant had previous convictions of Managing a Vice Establishment. Details are as follows:
Sentencing date Sentence Case No. 29/5/1998 2 months’ imprisonment suspended for 12 months and a fine SK/1274/98 4/11/1998 6 months’ imprisonment, the 2 months previously suspended were to be served consecutively (a total of 8 months) NK/7586/98 14/5/2009 6 months’ imprisonment, KC/2668/09
3.      I believe that it is appropriate to sentence the defendant to 12 months’ imprisonment (that means the starting point is 18 months). This punishment can be said to be lenient.”

7.  It is necessary to clarify one point, namely the defendant actually had 4 previous convictions of Managing a Vice Establishment.  The magistrate said there were 3 and that was wrong.  In addition, the defendant had one conviction of Operating an Unlicensed Massage Establishment.

The appeal

8.  In a nutshell, the appellant submitted that the sentence imposed in this case is manifestly excessive in comparison with the sentences in previous cases.

9.  After considering all the authorities cited and the submissions made by the parties, I agree with the remarks made by Deputy Judge To (as To J then was) in HKSAR v Lam Sze Kei,HCMA 1249/2004 (see paragraph 15 of the judgment):

“An ordinary vice establishment does not employ more than 5 employees and not more than 10 prostitutes. The mode of operation is relatively simple…… The proper starting point for managing this kind of vice establishment is 12 months’ imprisonment. The magistrate can fix a proper starting point by taking into account the scale and mode of operation of the vice establishment in question.”

10.  The respondent submitted that the premises involved in this case occupied two storeys and there were as many as 16 cubicles, and that its scale of operation was larger than that described by Deputy Judge To, so the starting point should be higher than 12 months.  I do not agree.

11.  In my judgment, the layout of the premises in question, for example, how many cubicles there were, is certainly one of the indicators of the scale in which the vice establishment is being operated. However, there is a limit on what conclusion can be drawn from information on this aspect alone.  In this case, the only employee arrested by the police was the appellant.  There were only 6 prostitutes and only 29 condoms were found.  When determining the starting point, excessive weight should not be attached to any one factor. The most that can be said is that the premises involved in this case had a high potential to be run in a bigger scale.

12.  Taking into account all the available information, including the layout of the premises and the number of people involved in this case, I consider that to use 12 months as the basic starting point is an appropriate and balanced conclusion.

13.  Having said that, there is one thing which the appellant has to admit, that he is a repeat offender.  His 4 similar convictions alone show that he is veritably so.  As a matter of fact, simple arithmetic tells us that when the appellant committed the present offence, it was at most just about 3 months after he served his last sentence, and the reason for his being imprisoned last time was the same as this time, namely Managing a Vice Establishment.  This is undoubtedly a reason for increasing the sentence, which is a well established principle in sentencing.

14.  Moreover, I would like to quote another observation made by Deputy Judge To in Lam Sze Kei. Immediately after he remarked that generally 12 months should be used as the starting point, he went on to say (paragraph 15 of the judgment):

“Apart from that, the magistrate can take into account other serious circumstances and increase the starting point, for example, the ages of the prostitutes employed, whether they stay in Hong Kong illegally and whether they are employable in Hong Kong.”

15.  I believe that this view is entirely correct.  Indeed, there are authorities which support Deputy Judge To’s view that the prostitutes’ status under the immigration law can be an aggravating factor on its own (that means putting aside questions about the 12 months).  HKSAR v Lee Tang-yau, HCMA 602/2001 is one of such authorities.

16.  The appellant cited other cases, hoping to press home the point that many cases in which the sentences passed were lighter than that in the present case also involved women who entered the territory illegally or were in breach of their conditions of stay.  However, I do not think that these cases have too much value as reference materials.  They are not the most recent cases and there is an absence of analysis specifically about this issue.

17.  The magistrate said that he was not sure whether the defendant was aware of the visitor status of the 6 women involved in this case, so he would not treat this as an aggravating factor.  I do not agree with him.

18.  My view is that once a person from another place comes into contact, albeit the shortest contact, with a local resident, there is no way for that person to conceal the fact that he is not a local resident.  Judicial experience tells us that most of the women who came from the Mainland to work as prostitutes here were natives of provinces other than Guangdong.  In relation to them, my comment is particularly pertinent.

19.  Such being the case, a person who manages a vice establishment and is willing to take the risk to introduce or supply such women to brothel goers must bear the consequences.  That is to say, if in the end it is proven that such women are illegal immigrants or visitors who are not allowed to work here, then the person who managed the premises has to receive a heavier sentence, unless that person can put forward any reason or there is any information in the case papers which shows any reason that the case should be dealt with exceptionally.

20.  I think that in most cases the Court can rely on its common sense to come to a conclusion in this matter and does not need to carry out a Newton Inquiry.

21.  I expressed my view that the prostitutes’ status under the immigration law should be treated as an aggravating factor in this case.  The appellant did not have much objection.

Conclusion

22.  Starting from the basic 12 months and then taking into account the two aggravating factors, namely that the appellant is a repeat offender and the prostitutes in this case were visitors, it is appropriate to arrive at the aggregate starting point of imprisonment of 18 months.  The appellant pleaded guilty and is entitled to 1/3 discount.  As a result, the term is reduced to 12 months.

23.  In other words, although the approach I took is slightly different from that taken by the magistrate, we arrived at the same result.

Decision

24.  The appeal is dismissed.