HKSAR v. HUNG NGAM CHUNG AND ANOTHER

DCCC870/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 870 OF 2012

----------------------

---------------------

Reasons for Sentence

---------------------

1.  D1, you have pleaded guilty to two offences of attempting to cause prostitution of another person, contrary to sections 131A and 159G of the Crimes Ordinance, Cap.200, and to one similar offence with D2. You also pleaded guilty to four offences of living on the earnings of prostitution of others, contrary to section 137(1) of the Crimes Ordinance, Cap.200.

2.  D2, you pleaded guilty to a single offence of attempting to cause prostitution of another person.

3.  The charges related to living on immoral earnings in respect of you, D2, were ordered to be left on file and not to be proceeded with without leave of this court or the Court of Appeal.

4.  Briefly, the facts are as follows.

Charge 1

5.  On 20 June of last year, WPC1058, PW1, nicknamed Amber, made contact online with Ella.  Subsequently, she received a call from D1, who identified himself as Ella.  D1 said he was called Ken and he was an agent with 16 girls working for him.  He said he could arrange customers for PW1 for sex and he would charge 25 per cent of the fees.  He also said he had a customer for PW1 that day and she could charge $1,600.  PW1 declined but agreed to meet D1 at Prince Edward MTR Station at 1300 hours the next day. 

6.  On 21 June 2011 she went there and D1 called her around 1232 hours.  They met at a nearby restaurant.  D1 told her he had a customer for her and he had several nearby locations for conducting business. He said she should charge $1,600 and would receive $800 to $1,000 of that.  She was told the collect the money first and give him commission later.  He said the sessions were one hour and she had to perform oral sex and have sexual intercourse. D1 asked PW1 to go to his place for a trial run.  The matter was observed by Detective Sergeant 51688, who intercepted D1 upon entering a building.  PW1 slipped away.

Charge 2

7.  On 20 June of last year, WPC10934, who was PW3, came across BB on the internet and made contact the next day.  She indicated that she had never been a prostitute but wanted to earn some money.

8.  On 22 June 2011, PW3 received a call from D1 who claimed to be BB.  He told her he was an agent with 10 girls working for him.  He requested to meet later and said he had a customer for her. 

9.  WPC8335, PW4, nicknamed Phoebe, was deployed to meet D1.  She arrived at Prince Edward MTR at around 1830 hours, called D1, and met him five minutes later.  D1 told her she could charge $1,300 per customer and $500 would go to him.  The encounter involved bathing with the customer, performing oral sex without a condom and sexual intercourse with a condom.  D1 said he had a customer but PW4 left.  This was observed by the sergeant who had arrested D1 the day before.

10.  On 24 June 2011 at about 1807 hours D1 called PW4 to say he had a customer for her and she could charge $1,300 for the activities he previously described.  At around 1835 hours, PW4 arrived at Kowloon Tong MTR, met the customer and went to a hotel.  Sergeant 33856 and other officers conducted a licence check and PW4 was escorted out.

11.  On 25 June 2011, WPC10934, PW3, nicknamed Dream Fly, chatted online with D1 under the name of Ting.  She indicated she had just started prostitution and wished to get in touch with a few more sisters.  D1 provided his number and PW3, under the name of Nancy, called him.  D1 said he was an agent, his name was Jimmy, and he could refer customers to her if she worked with him.

12.  On 27 June 2011, D1 called PW3 to ask if she would work as a compensated date and he would arrange a female, Connie, to escort her.  D2 then called and introduced herself as Connie.  They met at 1630 hours at Prince Edward MTR.  D2 said she had a group of frequent customers and she could charge $1,300 a transaction, keeping $800 and paying $500 to the agent.  D2 told her that it consisted of kissing, bathing, oral sex without a condom and sex with a condom.  PW3 was to collect the money first and then D2 would later collect the commission.  She was asked to wait for Jimmy but she made an excuse and left.  Around 10 minutes later D2 called her to ask her for her breast and hip measurements.  Woman Detective Sergeant 18526 observed the activities.

The arrest of D1 and D2

13.  On 20 July 2011, DPC53908 arrested D1 at the ground floor of his residence, 308 Portland Street.  D1 said he knew someday he would be arrested for engaging in compensated dating but all the girls working for him were at least 16. 

14.  In a subsequent video recorded interview on 20 July 2011, D1 made admissions.  In a further video recorded interview on 21 July he made further admissions.  Suffice it to say those admissions were full and frank and covered all the charges and supported the facts that have been given.  D2 was his only helper in the business.  He gave a list of girls he had arranged to operate as prostitutes.

15.  On 20 July 2011 at around 1530 hours D2 was arrested by DSPC50102 at her residence.  Under caution, she said she did this to assist her brother.  In a video recorded interview on 20 July 2011 she made a full and frank confession.

Charges 4 to 7

16.  Upon investigation, there were four other women who provided sexual services via D1.  Charge 4 involved girl ‘A’, date of birth 7 June 1989.  ‘A’ conducted eight sexual transactions arranged by D1 between 6 to 16 July 2011; D1 collected commission of $600 to $950 on each occasion.

17.  Charge 5 involved girl ‘B’, whose date of birth was 13 January 1992.  ‘B’ conducted four sexual transactions arranged by D1 between January and April 2011.  The commission of D1 was $400 to $800.

18.  Charge 6 involved girl ‘C’, whose date of birth was 20 July 1988.  ‘C’ conducted three sexual transactions arranged by D1 between early and mid-June 2011.  D1 received $700 for each as commission.

19.  Charge 7 involved girl ‘D’, whose date of birth was 20 July 1983.  ‘D’ conducted eight to nine transactions arranged by D1 between April and June 2011.  The compensation paid to D1 was $700 to $1,000.

20.  At all material times D1 knowingly lived wholly or in part on the earnings of prostitution of ‘A’ to ‘D’.

21.  D1 admitted to one previous conviction, which was not similar.  D2 has a clear record.

22.  On behalf of each of you Miss See entered mitigation.  You are in fact brother and sister; you, D1, aged 37, and you, D2, 49.  Tragically, your mother died when you, D1, were only 14, so you, D2, who was then 26, stepped in to care for him.  You, D1, are a university graduate, whilst D2 are not so well-educated.  In 2008 another tragedy struck the family when your father committed suicide. 

23.  In 2002, you had started together a business, Omiz, which dealt in high tech but reasonably priced Bluetooth appliances.  Initially that business thrived and there were earnings of over $100,000 a month. However, the economic collapse of 2008 led to the business failing and you each became bankrupt. 

24.  However, Miss See said you did not give up. You, D1, found a job as a waiter initially, then later as a purchaser in an electronics company, but now earning only $9,000 a month, a vast comedown from your previous earnings.  Having too much time on your hands you took to surfing the web and became involved in lonely heart sites.  You started pairing up men and women, then women to get financial reward for compensated dating.  You saw an opportunity to make money.  Sometimes if you were busy doing other things you would ask D2 to assist, so this is how she committed the offence.

25.  D2, I am told you have your own family and you are employed as a sales lady, earning $8,000 a month.  You have to support your sick husband who is too weak to work after major liver surgery in 2006.  Whilst his condition is stable, I understand from the reports he continues to have further treatment.  You also have a daughter aged 19, who is studying at Hong Kong University in Year 2.  Both your husband and your daughter are suffering from depression. 

26.  Miss See submitted there is no tariff for these cases, each had to be decided on the facts.  Properly and realistically she faced up to the fact that you, D1, had to go to prison for a substantial sentence but asked me to consider community service in the case of you D2, given your minor role. 

27.  She submitted the scheme was of short duration, lasting only from January to June 2011; of small scale, D1 being the main perpetrator.  She said if one took Charges 4 to 7, the average transaction from those, D1, you would only have earned about $20,000 in total; all the girls were willing, there was no suggestion of threats or force, the communication initially had been online or by telephone; there were no underage girls, indeed, the four involved are adults being aged 20, 23, 24 and 29; there was no international element in the sense of shipping in girls; and you, D2, merely assisted occasionally.

28.  Quite rightly, Miss See also submitted that in respect of Charges 2 and 3, the undercover agents involved had led you, D1, to believe that they were already involved or wanted to get involved in prostitution. 

29.  Also, from the time of your arrest both of you were extremely co-operative with the police, admitting your roles frankly and freely.  D1, you indicated from the outset you would plead guilty.  She also submitted both of you were extremely remorseful.

30.  She emphasised your clear record, D2, and the impact on your family of your arrest.  She pointed out that your husband and younger sister were here to offer support but that you would not allow your daughter to attend.  She referred me to a file of documents which spoke of charitable donations made when the company was doing well, also to the letters of support and mitigation. 

31.  In view of the comprehensive and unusual mitigation and upon Miss See’s request, I did decide that reports should be called for.  I therefore adjourned the case for Probation Officers’ background reports for both of you, and in view of the mitigation in respect of you, D2, also for Community Service reports.  I also made it clear to you that all I was undertaking to do was to consider Community Service, that prison was very likely indeed, and I put on record that no matter what the recommendation was, I reserved to myself the right to sentence in any way I felt to be right and just.

32.  Those reports are before me now and I have considered them.  They are extremely comprehensive and very helpful.  The Probation officer who compiled those reports is to be congratulated for his diligence.

33.  In respect of you, D2, a Community Service Order is indeed recommended, and I note from those reports that the mitigation advanced by Miss See received support.  It is fair to say that in both cases those reports are very favourable indeed.

34.  I invited further representation from Miss See, which she placed before me.  Today she commenced by telling me that both of you accepted the contents of the reports.  She underlined that they did indeed support the mitigation that she had put before me.  She presented a letter from you, D1, in which you expressed your regret for dragging your sister into this situation. 

35.  Miss See went on to make further pleas of mitigation on your behalf, D2, submitting the offence to which you have pleaded guilty resulted from your desire to continue to help your brother, D1.  Indeed, she submitted that all your life you had dedicated yourself to caring for your family - your father, your brother, your sister - after the death of your mother.  Now you cared for your own family, having a sick husband and a daughter at university, both of whom are suffering from depression.  She said your level of self-sacrifice is evinced by and highlighted by the sleeping arrangements at your tiny flat where you are consigned to a “put-me-up” in the lounge, giving up the two bedrooms to your husband and daughter.  She reminded me rightly of your clear record, that you have suffered over two weeks’ imprisonment, and you are unlikely to re-offend.  On your behalf, Miss See asked me again to consider the imposition of a Community Service Order.

36.  The offences are serious, there is no doubt of that, especially as far as you are concerned, D1.  You are convicted of seven serious offences.  You are an educated man, once a major achiever but now fallen upon hard times.  You have one previous conviction I note. 

37.  What you have done, D1, is reprehensible by any standard.  You have attempted to and, indeed, succeeded in organising and running a circle of prostitutes for your own financial benefit.  It is also in my opinion an aggravating feature that you have dragged your sister into this ring of vice.  It seems to me that you have taken advantage of her good nature of helping people.  However, there are points in mitigation and these have to be acknowledged and applied.  First of all, none of the girls are either underage or even close to being underage; they were willing volunteers.  Your financial gain from Charges 4 to 7 was not large.  I note that though you are guilty of attempting to persuade persons into prostitution in respect of Charges 2 and 3, that the undercover agents involved had presented themselves as either involved in prostitution or wishing to be so. 

38.  A feature of these offences is there is no coercion involved.  There is no international element in that all the girls were local girls.  In respect of your sister, there is a double-edged sword here in that you are very supportive of your sister now but it was you who dragged her into this in the first place.  From the time of your arrest you were extremely co-operative with the police.  You made full and frank confessions and indicated from the outset you would be pleading guilty. 

39.  I am satisfied that your remorse is profound and genuine, especially for involving your sister, which is a theme I return to. Therefore, whilst these are very serious offences, there are many points of mitigation.

40.  I do take the view that an intelligent man like you ought to have sought a better way to restore his finances, a legal and proper path.

41.  D2, I turn to your situation.  I have a great deal of sympathy for you, though the offence you committed is a serious offence, I have to acknowledge that.  You are a lady of clear record, you are involved in only one offence.  I am prepared to treat this as a wholly exceptional case and extend the hand of mercy to you. 

42.  There is a great body of mitigation in your case.  First of all, all the mitigating factors applying to D1 apply to you too, save those relating to Charges 4 to 7.  You are of clear record.  You have heard the clang of the prison gates which I hope has had a profound effect on you, and you have served over two weeks’ imprisonment.  You have a husband who you care for who is very sick indeed, and a daughter at university, both of those are suffering from depression.  You are the sole breadwinner of the family and if you were to lose your liberty it is difficult to see how the family would survive.  The effect on them would be profound. 

43.  I note also that all of your life you appear to have dedicated yourself to the help of others.  After the tragic death of your mother you took on the role of mother for the family, caring for your two younger siblings and your father.  In 2008 you suffered the trauma of your father committing suicide and the failure of the business that you had built up with your brother.  It also seems that during the course of your life you suffered two abusive stepmothers.  The offences took place with you pursuing what you have always done, that is assisting and helping your brother.  From the facts themselves there is no evidence that you made any financial gain from that taking part, and also the reports are extremely favourable.

44.  I turn now to the sentences.

45.  D1, you are the ringleader in the most profound sense.  Were it not for you your sister would not be before the court today, and as I said to you, an intelligent man should seek a better course to regaining his wealth.  These offences are numerous and, as I have said, reprehensible.  There is, as I have also said, much mitigation, I take that into account.

46.  On Charges 1 to 3, on each I take a starting point of 21 months’ imprisonment, reduced to 14 for your plea of guilty.  These will be served concurrently to each other.

47.  On Charges 4 to 7, I take as a starting point 15 months’ imprisonment on each, reduced to 10 months for your plea of guilty.  Again, applying the principle of totality, they will be served concurrent to each other but consecutive to the sentences on Charges 1 to 3; that is a total of 24 months’ imprisonment.

48.  D2, I reject Community Service as not being condign enough for what you have done.  The offence you have committed warrants and justifies a custodial sentence. 

49.  I take as a starting point 15 months’ imprisonment, reduced to 10.  However, given the wholly exceptional circumstances that pertain in this case, that will be suspended for a period of 2 years.  That means that if you commit no further offences carrying imprisonment within the next 2 years you will not be required to serve that sentence, but if you commit such offence at all, then you would normally be required to serve this 10 months in addition.  Do you understand?

2nd DEFENDANT: I understand.

50.  I thank both advocates for their assistance, and Miss See, for a very fine mitigation.