R. v. YUEN Fung Lin

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 679 OF 1995

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J U D G M E N T

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1. The appellant pleaded to one count of Assisting in the Management of a Vice Establishment contrary to s.139(1)(b) of the Crimes Ordinance. She was sentenced to two months' imprisonment. The appellant was 40 years old and she assisted her mother to manage the premises of Sakura Beauty and Massage. Police officers posing as customers were offered masturbation by masseuses on the premises. The appellant admitted she was responsible to pay rent, to recruit masseuses and to pay their wages.

2. The learned magistrate initially sentenced the appellant to 3 months' imprisonment.

3. On review and on further mitigation being made by counsel on the appellant's behalf that the appellant did not make large profit as establishments of this kind generally might make and the premises had been closed down so that the appellant committing such offences again was unlikely, the learned magistrate reduced the sentence to one of two months' imprisonment.

4. In his reasons for sentence, the learned magistrate recognised that the appellant earned $5,000 per month and the premises had been closed down. He was of the opinion that offences of this kind were serious and prevalent and on the increase in recent times in Hong Kong. Fines and suspended sentences had proved to be ineffective and in view of the large potential profits that could be made in such trade and the substantial role the appellant played in managing the premises, a deterrent sentence of immediate custodial sentence was called for. The learned magistrate was aware of the decision of Leung Lim-man and another v. R. M.A. 214 of 1985.

5. Mr. Hemmings submitted that there was no evidence that offences of this kind were on the increase and there was no basis for a deterrent sentence. He submitted that the profit the appellant could derived from the premises was small and this could be distinguished from other establishments where potential profit might be large. He relied on Leung Lim-man where the court held that for assisting in the management of a vice establishment, the normal sentence would be one of suspended sentence rather than immediate custodial sentence. He further relied on R. v. Curran (1973) Cr. App. R. 945 where the Court of Appeal held that as a general rule, it is undesirable that a first sentence of immediate imprisonment should be very long, disproportionate to the gravity of the offence, and imposed for reasons of general deterrence.

6. Mr. Casewell for the Crown informed me that there had been no more recent authority on sentences in respect of assisting in the management of a vice establishment than the case of Leung Lim-man. He agreed that the normal sentence for such an offence was suspended sentence unless there were grounds for exception. The question for the court was whether there were such grounds in the present case.

7. In the case of Leung, the court differentiated assisting in the management of and managing a vice establishment. In respect of the latter, where there was large profit, immediate custodial sentence would be considered. Whereas, in respect of the former, the normal sentence for a first offender would be a short suspended sentence and/or a fine. The court in Leung's case arrived at that conclusion after reviewing the sentences of 29 cases of managing and assisting in the management of vice establishments. Though this case was some ten years ago, there is nothing to indicate that there has been a change of circumstances which require renewed consideration of suspended sentence for the offence of assisting. Where a conviction is on assisting, the offender should be sentenced on that basis and not otherwise even though her role might appear to be more in managing than assisting. There is no evidence to support or any basis for the learned magistrate's opinion that offences of this kind are on the increase and suspended sentence and/or fine have proved to be ineffective.

8. The appellant is a first offender in relation to such offence, her previous convictions were in 1983 and 1988 and were not similar. There is no evidence that the appellant derived large profit from the premises. Her income of $5,000 per month which was not challenged shows the contrary. The premises having closed down, the likelihood of the appellant repeating such offence would be little and there is no basis for a general deterrent sentence or in respect of the appellant.

9. I see no reason that Leung Lim-man should not be followed. The appeal against sentence is allowed. The sentence of 2 months' imprisonment is set aside and a sentence of 2 months' imprisonment suspended for 2 years is substituted therefor.