HKSAR v. WONG BUI YI, BELLA also known as WONG FO YAN AND OTHERS

DCCC 1045/2020

[2022] HKDC 213

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1045 OF 2020

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REASONS FOR SENTENCE

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1.  D1, D2 and D3 appeared before me. They faced a charge sheet comprising 3 charges as follows.

2.  Charge 1 is preferred against all three defendants.  It is Living on earnings of prostitution of another, contrary to section 137(1)  of the Crimes Ordinance, Cap 200.  Particulars are that D1, D2 and D3, between 8 May 2020 and 10 May 2020, both dates inclusive, in Hong Kong, knowingly lived wholly or in part on the earnings of the prostitution of X.

3.  Charge 2 is preferred against D2 and D3 only.  It is Controlling over another person for purpose of prostitution, contrary to section 130(1)(b)  of the Crimes Ordinance, Cap 200.  Particulars are that D2 and D3, between 8 May 2020 and 15 May 2020, both dates inclusive, exercised control, direction or influence over X for the purpose of X’s prostitution.

4.  Charge 3 is preferred against D2 and D3 only.  It is Blackmail, contrary to section 23(1)  and (3)  of the Theft Ordinance, Cap 210.  Particulars are that D2 and D3, between 15 May 2020 and 16 May 2020, in Hong Kong, with a view to gain for themselves or another or with intent to cause loss to another, made an unwarranted demand of $33,400 Hong Kong currency from X with menaces.

5.  D1 pleaded guilty to Charge 1.  D2 and D3 pleaded not guilty to Charge 1.

6.  D2 and D3 pleaded guilty to Charges 2 and 3.

7.  Prosecution asked that Charge 1 as against D2 and D3 be left on court file not to be re-opened without the leave of this court or the Court of Appeal.  I so ordered.

FACTS ADMITTED BY THE THREE DEFENDANTS

Charge 1 Living on earnings of prostitution against D1 (8-10 May 2020)

Charge 2 Controlling another for prostitution against D2 and D3 (8-15 May 2020)

8.  At all material times, X was 16.  X and D1 came to know each other in 2019 and became casual friends.  A few days before 3 May 2020, X sought to borrow money from D1 who turned down the request.  On 3 May 2020, D1 asked X via Instagram whether X would be interested in becoming a Part-time Girlfriend (“PTGF”).  When X asked if she needed to provide sexual services to clients, D1 confirmed so.  X was interested.  So D1 opened a Whatsapp chat group with X and D2.  D1 introduced X to D2 who asked X to meet her at the Pentahotel Hong Kong in Tuen Mun in the same evening.

9.  On arrival, X met D2 and D3 in a room of the hotel.  X understood that D2 and D3 would act as her agents.  D2 and D3 then took some sexy photos of X in the hotel room and used the photos to set up a Telegram account for soliciting clients to have sex with X.  D2 and D3 told X how they operated the business and what X needed to do before and after serving a client.

10.  In gist, D2 and D3 would first arrange a vehicle to pick up X.  They would then drop off X at somewhere near the hotel selected by the client. After that, X needed to locate the client herself.  Once the client is located, X would send a “o” symbol in another Whatsapp chat group (“the Group”)  she opened with D2 and D3.  When X arrived at the hotel room, she needed to ask the client to pay cash of $2,600 before providing sexual services to the client. Having finished performing the services, X would send a “?” symbol in the Group.  D2 and D3 would then pick up X immediately with the vehicle where X needed to hand over all of the money received to D2 and D3 who would jointly take X to the next location to meet the next client, if any.  By the end of the working day, D2 and D3 would pay X her portion of earnings.  X would get $1,000 for each client she served.  D1 got $200 as commission for each client X served.

11.  On 8 May 2020, D2 and D3 arranged for X to serve 5 clients.  By the end of the working day, X received cash of $5,000 from D2 and D3 as her income.

12.  On 10 May 2020, X was arranged to serve a number of clients.  However, some of them did not turn up and X only served 3 clients in the end and was then paid $3,000 as her income for the day.

13.  X never brought any condoms and lubricant when she met the 8 clients. The condoms were prepared by the clients who also booked and paid for the hotel rooms.  X could not recall the exact locations of the hotels at which she had served clients.  She did not have any information regarding the drivers and vehicles hired.

Charge 3 Blackmail against D2 and D3 (15-16 May 2020)

14.  Since X felt unwell during the next few days, she declined to take up any jobs assigned by D2 and D3 anymore.  She received threats from D2 and D3 and also from an unknown person using a prepaid SIM card number 6212 5760 (“the unknown user”)  on Whatsapp demanding her to resume her work or else she had to pay compensation.  In particular, on 15 May 2020, X received 5 messages on Whatsapp from the unknown user.  According to the unknown user, she had to pay $31,000 as compensation or else her photos would be in the posters in Shum Shui Po and Yuen Long.  The unknown user also threatened that some clients had the videos of X.

15.  On 15 May 2020, D2 also threatened X on Whatsapp that there would be posts about X if she did not repay D3 and her (D2)  by 12 o’clock that day.  D2 further threatened X on 16 May 2020 that she would be able to find X if the latter did not pay D3 and her (D2)  $33,400 that day.

16.  As for D3, she demanded X on 15 May 2020 to repay everything including 2 days’ expenses for drivers and meals to D2 and her (D3).  On 15 May 2020, after D3 could not locate X to be PTGF, she threatened X that she would find X at the latter’s home.

17.  X had no idea how the so-called compensation came about.  She felt nervous and did not know what to do so she agreed to resume work on 15 May 2020.  However, she hid herself and did not answer any calls from D2 or D3.  In the evening of 15 May 2020, X related the incident to her friend.

18.  The unknown user was also added as a participant by D2 as the coordinator in the Group on 16 May 2020 when D2 and D3 were unable to locate X.  After being added to the Group, the unknown user told X to start talking to them.  After X did not make any reply, D2 said in the Group that they would start playing with X.  D3 immediately replied by sending a message in the Group and asked about the “videos?”.

19.  On 16 May 2020, X sought assistance from a social worker and the case was reported to the police.

Arrest and caution

20.  On 21 May 2020, D1 was arrested.  Under caution for Charge 1, D1 admitted that she had referred X to D2 for the job of PTGF; in return, D1 would get a commission of $200 for each client served by X.

21.  During two cautioned VRIs taken on the same day, D1 stated:-

(a)  She was a colleague of D2 and D3 when they worked at a bar in August 2019; she became a friend of D2 but she did not know much about D3;

(b)  On an unknown day, D1 saw an Instagram post of D2 showing a stack of cash; when D1 asked D2 what it was about, D2 told D1 that she was an agent of PTGF and asked D1 if she can refer any friends to her (D2);

(c)  In early May 2020, D1 asked X via Whatsapp to see if she would be interested in becoming a PTGF;

(d)  D1 understood from D2 that being a PTGF meant the girl needed to have sex with clients for money; D1 told X the same;

(e)  D1 then opened a Whatsapp chat group with X, D1 and D2 being the participants;

(f)  After D1 had referred X to D2, D2 communicated with X on another Whatsapp chat group ie the Group;

(g)  After the first day of X’s work, D2 transferred $1,000 to D1’s Hang Seng Bank account as her commission; and

(h)  After the second day of X’s work, X told D1 that she felt unwell.

22.  D1’s mobile phone was seized.  The Whatsapp messages found in D1’s Whatsapp account are consistent with X’s version.

23.  On 19 May 2020, D2 was arrested by the police.

24.  On 19 May 2020, D3 was arrested by the police.  The police subsequently took 3 VRIs with D3.  Under caution, D3 stated that:-

(a)  It was X who took the initiative to approach D1, D2 and D3 to look for a job as PTGF;

(b)  D3 knew that a PTGF was required to provide sexual services for males;

(c)  D3 was previously a PTGF herself;

(d)  D2 and D3 were responsible for finding clients for X whereas D1 was an agent finding girls to become PTGF;

(e)  D2 first took some sexy photos for X;

(f)  D3 would help to upload X’s photos to the Telegram account and began looking for clients for X;

(g)  X and D1 to D3 all had monetary benefits;

(h)  X would receive $2,600 from each client she served and X would earn about $1,100 to $1,200 from that;

(i)  D3 could not remember how much D1 to D3 would earn from each client X served;

(j)  D3 was responsible for finding clients for X, discussing with clients what (they)  could and could not do as well as being in charge of the money;

(k)  D2 was responsible for arranging for transportation for X;

(l)  Upon X’s request, D1 to D3 had escorted X to meet the clients as X felt safer that way;

(m)  D3 demanded X to pay back some $30,000 because it was the money they lent to X;

(n)  When asked how the $30,000 came up, D3 claimed that X had owed her $4,000 because D3 had paid for X’s food; the rest was X’s debts owed to D1 or D2, but D3 could not tell how much X actually owed D1 or D2 individually;

(o)  A Whatsapp group ie the Group was opened between X and D2 to D3 for the sexual work of X;

(p)  D3 had only arranged for 3 to 4 clients for X which were all on 8 May 2020;

(q)  D3 knew that X had felt unwell in her private parts after working on 10 May 2020 but she did not know why; D3 asked X to see doctor and rest;

(r)  A few days later, X contacted D3 and claimed she could serve clients again; yet X disappeared in the end;

(s)  When X re-appeared, D3 demanded X to repay $4,000 which was the debts owed to D3 by X; and

(t)  Between 16 and 17 May 2020, D3 had put up a post on Instagram stating whoever could provide the address of X or D1, D3 would reward that person.

25.  D3’s mobile phone was seized.  The messages found in D3’s Whatsapp account are consistent with X’s version.

CRIMINAL RECORDS

26.  All 3 defendants have clear records.

ANTECEDENTS

27.  D1 is aged 21 (20 at the time of the offence), educated to F5 level, was a saleslady.  Her family members include parents and an elder brother.

28.  D2 is aged 23 (22 at the time of the offences), educated to F3 level, was a clinic nurse.  Her mother is aged 64.

29.  D3 is aged 22 (21 at the time of the offences), educated to F5 level, was a waitress.  Her family members include parents and a younger sister.

MITIGATION

D1

30.  Mr Luk King Wang of counsel assigned by the Director of Legal Aid mitigated on behalf of D1.  The following is a summary of the mitigation submissions.

31.  D1 was born in Hong Kong.  She came from a broken family, being an illegitimate child.  Nonetheless she has close relationship with her parents and contributes towards her mother’s living.

32.  D1 got married in October 2021 and is now 7 months’ pregnant, with delivery expected in February 2022.  Her husband, aged 23, is working in logistics earning $30,000 per month.  The couple live in Yuen Long by paying monthly rent of $12,000.  Before arrest, apart from working in sales, she also worked part-time as waitress.  She earned $15,000 in total per month.

33.  D1 pleaded guilty and feels remorseful.  She committed the offence out of greed.  She promises never to re-offend and begs for leniency.

34.  D1 has written a Chinese mitigation letter (submitted)  the gist of which is she is deeply sorry for the harm done to the victim.

35.  Mr Luk emphasized D1’s limited role in that she was approached by X to see if there were opportunities for making money; she then introduced X to D2.

36.  Regarding D3’s non-prejudicial statement (NPS)  in Chinese dated 5 July 2021, D1 admitted that the NPS was to a certain extent instrumental in D1 pleading guilty to Charge 1.  Mr Luk drew the court’s attention to the parts of the NPS which dealt with D1’s limited involvement viz last sentence of para 8 and the 3^rd line of para 10.  Mr Luk conceded that despite D3’s stance as indicated in the last paragraph of the NPS that her primary purpose was to testify against D2, her evidence would invariably touch on D1, though to a limited extent.

37.  Mr Luk submitted a Maternity/Sick Leave Certificate to show that D1’s expected date of confinement for delivery of baby was 18 February 2022.

38.  D1’s background report is unremarkable and shows she is being taken care of by her husband meanwhile.

39.  Today (1 March 2022)  D1 by her solicitor Mr Stephen Fung reported the birth of her baby boy sometime last month.  Mr Fung added that apart from her ongoing heart problem and some issues related to her thyroid, D1 has developed post-natal depression.  Mr Fung urges the court to consider either a short sentence or a suspended sentence.

D2

40.  Mr Ernest Yuen of counsel assigned by the Director of Legal Aid mitigated on behalf of D2.  The following is a summary of the mitigation submissions.

41.  D2 was born in 1997 in the Mainland.  Her parents divorced when she was only 2.  Since then, D2 moved to Hong Kong with her mother and she never saw her father again.  When she was 3, she was sent to Po Leung Kuk and stayed there until F1 because her mother was involved in some criminal matter.  D2 reunioned with her mother and completed F3 education (background report says F2)  when she was around 16.

42.  After leaving school, D2 worked as a saleslady to make a living.  When D2 was 18, her mother transgressed the law in the Mainland and was sentenced to life imprisonment.  D2 had then to mend for herself.  At the time of arrest, D2 was a clinic nurse earning about $13,000 a month.

43.  D2’s cohabiting boyfriend is a technician and earns about $18,000 monthly.  In early 2021, D2 became pregnant and is expecting a baby soon. After the baby is born, D2’s boyfriend will take over the responsibility of caring for the child.  He and D2 have plans to get married after D2 has served her sentence.

44.  It is accepted D2 is likely to serve an imprisonment sentence for both Charges 2 and 3 though there are no sentencing guidelines.

45.  The strongest mitigating factor is the pleas of guilty showing her remorse and obviating the need for X to give evidence in open court.

46.  In respect of Charge 2, D2 asked the court to bear in mind:-

(a)  X was not held against her will and no duress was involved;

(b)  Only one prostitute was involved;

(c)  X only served customers for 2 days;

(d)  D2 did not induce X to become a prostitute; and

(e)  D2 did not deprive X of the benefit of her service.

47.  In respect of Charge 3, it is submitted the threat did not involve the use of violence; that X’s video/photos were never leaked to the public.

48.  Mr Yuen cited different sentencing cases as references to help the court towards arriving at the correct sentences on the two charges.

49.  D2 has a clear record and is prepared to bear the responsibility; she prays the court to give her a chance to start anew and to sentence her leniently.

50.  Mr Yuen submitted two mitigation letters written in Chinese respectively by D2’s boyfriend with his mother jointly and D2 herself.  The contents are generally that D2’s boyfriend is ready to receive the forthcoming baby into the family of which D2 will form a part and therefore prays for a shorter sentence for D2 so that the family may reunion sooner; that D2 committed the offences out of greed and she is deeply regretful and feels sorry for the victim.

51.  Mr Yuen submitted a certificate showing D2’s participation in a voluntary activity during the months of September and October of 2021.  He also submitted a Maternity/Sick Leave Certificate to show that D2’s expected date of confinement for delivery of baby was 22 January 2022.

52.  D2’s background report is unremarkable but shows her cohabiting boyfriend and his mother care for her well-being.

D3

53.  Ms Lorinda Lau of counsel assigned by the Director of Legal Aid mitigated on behalf of D3.  The following is a summary of the mitigation submissions.

54.  D3 has a clear record and is single, now works part-time as nail beautician.

55.  Her parents divorced long time ago.  Her mother works at a petroleum station.  She paid between $10,000 to $20,000 a month to her mother.  She supports her younger sister’s university education in Guangzhou.

56.  In her mitigation, D3 put the blame on D2 as the instigator of the offences picturing D3 as acting under D2’s pressure.

57.  As early as 26 April 2021, D3 approached the prosecution offering to give an NPS and to testify as a prosecution witness.  On 22 June 2021, D3 wrote again to remind the prosecution of her willingness.

58.  On 5 July 2021, D3 gave an NPS and agreed to testify in court if necessary.  When she did so, she did not know D2 had already indicated to the prosecution that the latter would plead guilty.

59.  On 8 July 2021, during a resumed mention hearing, D1 and D2 formally indicated to the court that they would plead guilty to their respective charge(s).

60.  To counter the suggestion of the prosecution that the NPS possessed minimum evidential value and did not add value to the prosecution case, Ms Lau replied that part of what X knew about D2 and D3 could be hearsay from say D1.

61.  To counter the suggestion of the prosecution that the bulk of the NPS was directed against D2 not D1, Ms Lau replied that D1 through her counsel has agreed that the NPS did have an impact on D1’s decision to plead guilty.

62.  D3 was relatively young when she committed the offences.  She has never committed any crime before and she has been working hard.  She was pulled into the offence subject of Charge 2 upon D2’s persuasion.  No force or violence was exercised on X.  There was no sophistication in the PTGF arrangement.

63.  Concerning the blackmail offence (Charge 3), D3 was out of pocket for $4,000 which was spent on X’s behalf; D3 demanded $30,000 from X on D2’s request or harassment and she never intended to pocket any of it.  There was no evidence of meticulous planning in the blackmail.

64.  D3 played a minor role when compared to D2.

65.  D3 felt remorse and apologizes to X.  She is young and determines to turn to a new life and to disassociate with D2.  She asks for a lenient sentence so she may live a clean life.  For her early plea, the court is urged to grant her 1/3 discount.  She asks for additional discount due to her assistance to the prosecution in light of Z v HKSAR (2007)  10 HKCFAR 183.

66.  D3 asks that most of the sentences be served concurrently having regard to the circumstances of the offences and the totality principle.

67.  Ms Lau submitted 4 mitigation letters written in Chinese by respectively a fellow church associate, D3 herself, her mother, and her younger sister.  The contents are generally that D3 is deeply regretful and wants to start a new life; that she apologizes to the victim and her family; and that she will not re-offend and asks for a lenient sentence.

68.  D3’s background report is unremarkable.

SENTENCE

69.  As an act of mercy, sentencing was adjourned to allow the delivery of D1 and D2’s respective babies in non-custodial setting.

70.  The maximum sentence for the offence subject of Charge 1 is 10 years’ imprisonment.  There is no sentencing tariff.

71.  The maximum sentence for the offence subject of Charge 2 is 14 years’ imprisonment.  There is no sentencing tariff.

72.  The maximum sentence for the offence subject of Charge 3 (blackmail)  is 14 years’ imprisonment.  There is no sentencing tariff though deterrence is a significant factor in sentencing.

73.  Because of the seriousness of the offences with their surrounding circumstances, immediate custodial sentence is the only sentencing option.  I am sure the Correctional Services Department will have adequate medical facilities to meet the needs of any of the defendants as necessary.

74.  I bear in mind the clear record of all 3 defendants.

75.  Prosecution submitted a Chronology of Events (undated)  at the hearing on 18 November 2021 explaining on what dates D3’s NPS (in Chinese)  was taken and when the two other defendants indicated to the prosecution their intended pleas of guilty.  In particular, the Chronology shows that D2 indicated her pleas to the prosecution 3 days before the NPS was even taken from D3.

76.  It was learned from the defence that the NPS was served on D1 and D2 on the date of the NPS ie 5 July 2021.

77.  I have considered all the mitigation submissions as well as the sentencing cases and the cases on sentencing principle referred to by D2 and D3.

78.  For Charge 1 against D1 only, I bear in mind her minor role, the short duration of the offence, the small amount of money involved and the lack of exploitation.  On the other hand, I also note the young age of X.  I take an initial starting point of 10 months, reduce it by 1 month to take account of D1’s clear record to reach a final starting point of 9 months.

79.  For Charge 2 against D2 and D3 jointly, I bear in mind the short duration of the offence and the lack of sophistication and the use of force or duress.  On the other hand, I note the young age of X and the need for condemnation and the aggravating factor of acting in concert.  On the available evidence, I cannot determine who the mastermind was as between the two defendants.  Against both, I take an initial starting point of 19 months, reduce it by 1 month to take account of their clear records to reach a final starting point of 18 months.

80.  For Charge 3 against D2 and D3 jointly, I bear in mind there was no meticulous planning or violence.  On the other hand, I note the need for deterrence in this type of heinous offence and the aggravating factor of acting in concert.  On the available evidence, I cannot determine who the mastermind was as between the two defendants.  Against both, I take an initial starting point of 22 months, reduce it by 1 month to take account of their clear records to reach a final starting point of 21 months.

81.  All defendants pleaded guilty in good time thus earning to their credit a 1/3 discount on sentence.

82.  In respect of D1 and D2, I see no other mitigating factors of weight to justify a further reduction in sentence.

83.  In the case of D3, there is only one other mitigating factor of some worth that falls for consideration, and that is the claimed assistance to authorities.  The fact that D2 had indicated her pleas prior to D3 giving an NPS principally against D2 rendered it completely irrelevant and useless as against D2.  However, I accept that some unintended utility came out of the NPS in that it had an influence on D1’s decision to plead guilty.  I will give D3 additional discount from the final starting points applicable to Charges 2 and 3.  The overall percentage of discount including the 1/3 for pleading guilty that I deem justified here is 38%.  I will round down to the nearest month upon calculation.

84.  For D2 and D3, although there is a minimal overlapping period between the two offences subject of Charges 2 and 3, and there is certainly some connection between the two offences, it cannot be said that the Blackmail offence will inevitably flow from the Controlling offence.  The notion of wholly concurrent sentences is out of the question.  However, I will allow partially concurrent sentences especially after taking into account the totality principle.

85.  The following are the individual sentences.

(All defendants please stand)

86.  The sentence for D1 on Charge 1 is 6 months’ imprisonment.

87.  The sentence for D2 on Charge 2 is 12 months’ imprisonment, and that on Charge 3 is 14 months’ imprisonment.

88.  The sentence for D3 on Charge 2 is 11 months’ imprisonment, and that on Charge 3 is 13 months’ imprisonment.

89.  As for D2, I order that 10 months of the sentence on Charge 3 be served consecutively to the sentence on Charge 2, making an aggregate sentence of 22 months’ imprisonment.

90.  As for D3, I order that 9 months of the sentence on Charge 3 be served consecutively to the sentence on Charge 2, making an aggregate sentence of 20 months’ imprisonment.