HKSAR v. YAU YIN MAN

[English Translation – 英譯本]
HCMA 762/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 762 OF 2007

(ON APPEAL FROM KCCC NO. 3082 of 2007)

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JUDGMENT

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1.  The Appellant was convicted on his own plea of two charges on the charge sheet:Charge (2) being “soliciting for an immoral purpose”, contrary to section 147(1)(a) of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong; and Charge (4) being “living on earnings of prostitution of others”, contrary to section 137(1) of the same Ordinance. He was sentenced to imprisonment for 4 months and 10 months respectively, with part of the sentences to run concurrently, making a total sentence of 12 months. The Appellant now appeals against sentence.

Facts

2.  The facts of this case are summarized by the magistrate as follows:

The facts reveal that at around midnight on 14 May 2007, the Defendant accosted a plain-clothes expatriate police officer on patrol duty and asked him whether he wanted sexual services from prostitutes. After the officer gave an affirmative answer, the Defendant asked him to liaise with the woman beside him (the 1^st Defendant). Eventually, the woman made two calls with her mobile phone and summoned two prostitutes to the scene (one of them being a visitor on a two-way permit, i.e. the 3^rd Defendant). The officer, when asked to choose from the prostitutes, pretended that he liked the 3^rd Defendant and chose her. He then gave the 1^st Defendant $1,000 before leaving with the 3^rd Defendant. The police officers lying in ambush in the vicinity observed that the 1^st Defendant gave $200 to Yau Yin Man from the money she received.

Eventually, the police officers emerged and arrested the Defendant. They also seized from him the $200 which the 1^st Defendant gave him and three condoms.

Upon enquiries, the police came to know that the Defendant and the 1^st Defendant worked together by approaching foreign tourists on Nathan Road and offering them prostitutes. They charged $1,000 for each prostitute, out of which sum the Defendant would receive $200 as his reward, while the 1^st Defendant and the prostitute would each receive $400.

The 3^rd Defendant came to Hong Kong as a visitor. One of her conditions of stay in Hong Kong was that she could not take up any jobs, paid or unpaid. By working as a prostitute here, she was in breach of her conditions of stay.

Reasons for sentence

3.  The magistrate’s reasons for sentence are set out below:

The crime of ‘soliciting for an immoral purpose at a public place’ is rampant in the area around Tsim Sha Tsui, and there is no sign that it can be curbed. Furthermore, this is an organized operation, with the prostitute involved being a visitor in breach of her conditions of stay, and the crime took place in the area around Tsim Sha Tsui where most tourists converge. All these combine to make the crime even more serious. In sentencing, the court has to take into account the rampancy of the crime and the effect it will have on Hong Kong’s international image.

The defendant is 62 years old and has seven previous convictions, four of them being similar to Charge (2). Furthermore, he had been sentenced to two months’ imprisonment in 2006 for the same offence, and the previous sentences apparently had no deterrent effect on him. Hence, I adopt 6 months’ imprisonment as the starting point for Charge (1), and reduce it to 4 months for his guilty plea.

Regarding Charge (4), as it has become rampant for mainlanders to come to Hong Kong to work illegally, severe punishment for such an offence must be meted out in order to have a deterrent effect. What the Defendant did, in my judgment, would indirectly encourage mainlanders on two-way permits to work as prostitutes in Hong Kong. Hence, a heavy sentence should also be imposed. There are no clear sentencing guidelines in respect of this offence, but I rule that the criminality of the offence is akin to assisting others to remain in Hong Kong illegally. Hence, I adopt a starting point of 15 months’ imprisonment, and reduce it to 10 months for the defendant’s guilty plea.

I have heard the submissions of Counsel for the Defendant, but after considering the facts of the present case and the Defendant’s background, I can see no special circumstances to justify a special discretionary reduction in the sentence. However, having regard to the Defendant’s age and the principle of totality, I order that 8 months of the sentence for Charge (4) is to run consecutively to 4 months of the sentence for Charge (2), making a total sentence of 12months’ imprisonment.

This appeal

4.  The Appellant raises three main grounds of appeal against the sentence, which are set out below:

1    (I)  With regard to the sentence for Charge (2), the magistrate had, without any or any adequate justification, adopted 6 months’ imprisonment as the starting point, which is the maximum statutory sentence for this type of offence. By doing so, the magistrate had erred in principle.

(II) Even if 6 months’ imprisonment as the starting point is not wrong in principle, it is still manifestly too high.

2 (I)  With regard to Charge (4), the magistrate had erroneously held that its criminality was similar or equal to the offence of assisting others to remain in Hong Kong illegally.

(II) Even if the magistrate had not committed the aforesaid mistake, 15 months’ imprisonment as the starting point is still manifestly too high.

3              The total sentence of 12 months’ imprisonment following a guilty plea is manifestly excessive.

5.  In my judgment, Ground (1) cannot be sustained. The magistrate adopted the maximum statutory sentence as a starting point not because of the seriousness of the case, but because of the fact that the Appellant had four similar previous convictions. It is a well-established practice to impose heavier sentences on persistent offenders to serve as deterrence.

6.  Besides, objectively speaking, the offence in the present case was by no means minor. It involved four persons and the selection of prostitutes in the street, and cannot be made analogous to the case of a lone person soliciting passers-by.

7.  All in all, I do not see any impropriety with the sentence for Charge (2).

8.  As forGround (2), I find the analysis of the magistrate problematic. As the Government Counsel has fairly pointed out, the Appellant’s act cannot be mentioned in the same breathwith the offence of “assisting others to remain in Hong Kong illegally”. There is a significant difference between the sentence for a prostitute who remains in Hong Kong illegally and that for a prostitute who breaches conditions of stay. The latter offence, of which the prostitute involved in the present case was convicted, attracts a much lighter sentence.

9.  In that case, what should be the proper sentence for Charge (4)? Having considered the authorities submitted by Counsel on both sides, (R.v. Tam Yui Kwong [1989] 1 HKLR 190; HKSAR v. Yue Yuk Kam (俞玉琴), HCMA 602/2007; HKSAR v. Yu Kin Chiu, HCMA 869/1999; R. v. Ma Kam Hon, Cr. App. 30/1998; R. v. Chan Wing Lung [1991] 2 HKC 116; R.v. Yau Chi Keung, HCMA 1597/1989), I hold that the appropriate sentence should be 6 months.

10.  I now turn to Ground (3).

11.  My analysis on the question of totality is as follows: Charges (2) and (4) are entirely different in nature; one can commit the two offences at the same time, or commit either of them. In fact, the crux of Charge (2) is that the defendant solicited for an immoral purpose “in a public place or within the public view”. (This is not obvious from the charge itself.) That being the case, I see no reason why its sentence should not be wholly separate from that for Charge (4). As for the final figure, it will still have to be determined in light of the totality principle.

12.  In the present case, I do not regarda total sentence of 10 months’ imprisonment too harsh for the Appellant.  The sentences for the two charges can and should be made wholly consecutive.

Judgment

13.  The appeal is allowed to the extent that the sentence for Charge (4) is set aside and replaced by imprisonment for 6 months, to run consecutively to the original sentences of 4 months for Charge (2), making a total term of 10 months.