HKSAR v. SUNG KA LOK AND ANOTHER

DCCC 903/2023

[2024] HKDC 559

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 903 OF 2023

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REASONS FOR SENTENCE

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1.  D1 pleaded guilty to Charge 2 - living on earnings of prostitution between 8 August 2022 to 6 September 2022, contrary to section 137(1)  of the Crimes Ordinance, Cap 200.

2.  D1 and D2 pleaded guilty to Charge 3 - conspiracy to live on earnings of prostitution between 19 September to 21 September 2020, two sections, 137(1), 159A and 159C of the Crimes Ordinance, Cap 200.

3.  The prosecution applies to leave charge one on court’s file.  Application is granted and it is now ordered not to be proceeded with without the leave of the Court.

Summary of facts

Background

4.  At the material time, PW2 was a member of a telegram group in which group members would post prostitution advertisement from time to time.

5.  In July 2022, PW2 contacted D1 for more details when he saw an advertisement in the group chat by D1.

6.  D1 sent photos of a girls (claimed to be aged 16)  and said that the sexual services included sexual intercourse and oral sex.  PW2 was not interested and did not pursue further.

Charges 2 & 3

7.  The first 3 arrangements were done by D1 alone (Charge 2)  and the 4^th arrangement were done by D1 and D2 (Charge 3).

8.  In all the 4 arrangements, PW2 was responsible for the booking of hotel rooms.

9.  D1 arranged 3 girls to provide sexual services to PW2 at an agreement for $5,000 for three hours except Girls 1 on the first occasions as Girl 1 was late for an hour, therefore the costs dropped to $4,000.

10.  The sexual services included unprotected sexual intercourse.

11.  The 4 occasions were taken place on:-

(1)  10 August 2022

(2)  28 August 2022 (Charge 2)

(3)  6 September 2022

(4)  21 September 2022 (Charge 3)

12.  As to the 4^th occasion, D2 contacted PW2 via Instagram that X had not received any payment after prostitution.  It was disclosed that D2 was involved in the arrangement of providing prostitution to PW2.

13.  D1 was arrested on 22 October 2022 while D2 was arrested on 21 October 2022.

14.  D2 said under caution that:-

(a)  X was referred to D2 by a friend and was recruited for prostitution.

(b)  On 19 December 2022, D1 asked D2 if she could arrange any girls for prostitution. D2 immediately referred X to D1.

(c)  D1 informed D2 that X would receive $23,000 for the job.

(d)  D2 told D1 that X was only 14 years old.

(e)  D1 told D2 that X had to insist that she was 16 if she wanted to receive $23,000.

(f)  D2 told X that she would receive $1,500 for the job.

(g)  On 21 September 2022, D2 met X in Langham Place at 2 pm. X changed her school uniform. D2 also kept her school bag and helped her to put on make up.

(h)  D1 instructed D2 that X would go directly to 7^th floor and PW2 would pick her up and bring her to the hotel room.

15.  In the Instagram conversation between D1 and D2:-

a)  It was revealed that D1 approached D2 on 19 September 2022 that he was recruiting someone to provide sexual services for a reward of $25,000 for two hours. D2 would receive a commission of $3,000.

b)  D2 referred X to D1.

c)  D1 also asked D2 weather she could introduce more girls of similar age of X and pretended to be virgin. D1 claimed that his clients were willing to pay for $80,000 to $100,000.

d)  D2 replied that she could and sent six photos of different girls to D1. D2 agree to introduce more girls to D1.

16.  On 20 September 2022, agreement was reached that all the money would be passed to D2 after X completed the job.

17.  On 21 September 2022, D1 instructed D2 to remind X to pretend that she was 16 and not to disclose to PW2 that she was 14.

Criminal record

18.  D1 -   he has a clear record

D2 - She has three conviction records in 2012-2022- that means she had a clear record at the time of the offence, but she committed the present offence while on bail for the other offences:

(a)  Wounding S 19

(b)  Criminal intimidation

(c)  AOABH

Background

19.  D1 is 23 years old, unemployed.  He lives with his parents and a 12 years old younger sister in Sheung Shui.

20.  His father is 54 years old, a construction site workers, suffers from lung cancer, but the condition is under controlled.

21.  D1 committed the present offences due to financial pressure as he suffered from work injuries and also delayed payment by his employer for months.  D1 therefore borrowed money from various financial institutions.

22.  His employer said that he will reemploy D1 after his release from prison.

23.  D2 is now 17 years old.  D1 was arrested in 21 October 2022, but was convicted for 3 unrelated charges in December 2022.  She was discharged from Rehabilitation Centre on 26 June 2023.  She was then remanded in custody until she was granted bail by Court on 21 November 2023.  She is now pregnant.

24.  I have read all the letters provided by D2. They tell me the circumstances leading to the commission of the present offence. D2 came from a broken family because of a chronic gambling father.  As such, her mother suffers from emotional stress.  D2’s boyfriend has a positive view of her while D2’s friend undertakes to employ her once she is released from prison.

25.  According to S 109A of the Criminal Procedure Ordinance Cap 221, I am obliged to call reports in view of the age of D2 who is now 17.

D2’s reports

26.  The 3 reports are now before me:-

(a)  Medical report said that D2 is now pregnant and her expected date for delivery will be in October this year.

(b)  The Training Centre report has a very comprehensive details report regarding D2.

(i)  When she was promoted to secondary school, she started to smoke and indulged herself in social media apps under the influence of her ex boy-friend. She came across some triad related juvenile in Sau Mau Ping and Kwai Chun.

(ii)  She went missing in 2 occasions:-

(1)  In the first occasion, she went to stay with her ex-boyfriend and had sex with him at the age of 13.

(2)  In the second occasion, she worked as a public relation in a bar in Mongkok.

(iii)  In view of her pregnancy, D2 is medically unfit for detention in a Rehabilitation Centre or a Training Centre.

(iv)  Regarding the present offence, she did not want to sell her body for monetary reward. But she introduced X to D1 as she was tempted by the $23,000 as promised by D1. She intended to pay X only $1,500.

(c)  The YOAP report said that considering the seriousness of the offence, she is unfit for disciplinary training in Rehabilitation and Training Centre and her reflection of the seriousness of the present offence was observed to be limited and she still needs to strengthen her law-abiding sense, the Panel recommends imprisonment for this case.

Sentence

27.  The maximum sentence for section 137 is 10 years’ imprisonment.

28.  There is no sentencing tariff for both charges.

29.  The defence submitted the following authorities for sentencing considerations:-

(a)  HKSAR v Pang For Cheuk CACC 623/1998

(b)  HKSAR v Pang Man Wai and another CACC 250/2007

(c)  HKSAR v Chan Yuk Bun CACC 187/2008

(d)  HKSAR v Tam Ka Chuen Danny CACC 406/2010

(e)  HKSAR v Wong Bui Yin, Bella DCCC 1045/2020

30.  In considering the sentence of this nature of offence, in the judgment of HKSAR v Tam Ka Chun Danny, the Court said that the following sentencing factors are relevant:-

“本庭縱觀這些案例後，所得的結論是「依靠賣淫」罪的判刑要視乎多種因素，包括賣淫活動的規模，活動持續的時間，妓女的人數，他們的來源/或他們的年紀是否會令到他們容易被人利用或欺凌，被告人在賣淫活動中所擔當的角色，他是否有前科, 以及他從賣淫活動個人所獲得的利益”

31.  Bearing in mind of the above sentencing factors, I first deal with Charge 2:-

(a)  It is a small operation. Only D1 was involved.

(b)  It covered a period of about 1 month.

(c)  D1 used Instagram to advertise his business.

(d)  D1 had a customer - he was PW2 - aged 38

(e)  D1 played an active role in going between PW2 and the Girls

(f)  There were arrangements between PW2 and D1 that PW2 would pay $5,000 for each sexual services.

(g)  D1 set up 3 meetings with PW2 to provide 3 prostitutes, 2 of them were 16 years of age. The other one’s age was unknown. Today, we have the Instagram snapshots from PW2’s photos which tell me that the girls were in uniform and he asked if she was 16.

(h)  In all 3 occasions, the sexual services included unprotected sexual intercourse.

(i)  PW2 had at least three sex partners in a month, it is unknown whether he has sex disease or not, but unprotective sex can render the three girls to be transmitted with sexual deceases and the possibility of getting pregnant.

(j)  The remuneration for introducing the girls to PW2:-

Girl 1 - he receive $4,000 (D1 reduced the services fee from $5,000 to $4,000 as Girl 1 was late for an hour)

Girl 2 - he received $4,000 (Out of the $5,000, D1 paid Girl 2 $1,000)

Girl 3 - he received $5,000

32.  Altogether he received $13,000 for Charge 2. It was a business that D1 needed not to pay anything, the hotel rooms were paid by his customers PW2. He used the girls as his earning tools to support his business. There is no evidence to suggest that he paid Girl 1 or Girl 3.

33.  Clearly D1 must have an agreement to pay the girls, otherwise, they would not be interested to do any unpaid jobs. In my view, these young girls were in fact in a very vulnerable position as they did not have any guarantee to receive payment. Assuming that they were willing prostitutes, it was morally corrupt in a sense that they needed the money to sell their bodies with the risk to contract sexual diseases and to get pregnant.

34.  On the other hand, I accepted that there is no evidence to suggest that:-

(a)  That there is triad involvement; or

(b)  use of force or duress upon the girls; or

(c)  exercise any control over them.

35.  To this end, I consider that a sentence of 9 months is appropriate, given the 1/3 discount, I reduce the sentence to 6 months.

Charge 3

36.  This charge was a conspiracy charge that D1 came to D2 to ask for introduction of girls as prostitute. D2 did not want to do it herself and she paid X to do the job. D1 had a customer (PW2), while D2 can provide X as a prostitute, they conspired together to earn easy money.

37.  Charge 3 only concerned X and for a period of 3 days.

38.  I was told by the Prosecution that X was a virgin at the time of the offence, but there was no evidence from the Instagram chats to indicate that D1 and D2 actually knew about it.

39.  The only evidence from the chat conversation was that it was the first time that X did it. It can open for interpretation that was the first time X did prostitution.

40.  The grave man of this charge was that both D1 and D2 knew the age of X was 14. It was legally and morally wrong for D1 and D2 to conspire together to introduce X to PW2 to have sex with X. On this note, D1 must have known the age of X and therefore he reminded D2 time and time again that X must insist that she was 16.

41.  D2 dressed X up, helped her to put on make up so that X could look more mature.

42.  The law is to protect the underage girls.

43.  There is no doubt this is a serious and aggravating factor in view of X age.

44.  She could have got pregnant and contracted sex disease too.

45.  D1 lied to D2 that she would be remunerated for $23,000 to refer X as a prostitute when in fact he had an agreement with PW2 for a cost of $5,000.

46.  At the end of the day, D1 did not pay D2 as agreed, as such X did not receive her services after selling herself for $1,500.

47.  In my view, the culpability of both D1 and D2 were the same.

48.  In sentencing D2, I bear in mind of the recommendations by YOAP, she is 17 as of today and that she is now pregnant, D2 will be looked after while she is in custody in CSD.

49.  Having considered all the evidence and the mitigating factors before me, I take 18 months as the starting point for charge 3 for both D1 and D2. I reduce D1’s sentence to 12 months after 1/3 discount.

50.  As to D2, she committed the present offence while she is on bail for another case, the defence accepted that it is an aggravating factor, as such I enhance the starting point by 3 months in D2’s case.

51.  The sentence for D2 is now 21 months (18 + 3 months), I reduce the sentence to 14 months after 1/3 discount.

Totality

52.  In D1’s case, I order 4 months from Charge 2 to run consecutively to Charge 3. That arrives at a total sentence of 16 months (4 + 12 months)  imprisonment.