HKSAR v. SUNG KWONG NGAI AND OTHERS

HCMA1160/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. HCMA 1160 OF  2004

(On Appeal from KCCC 11810/2004)

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J U D G M E N T

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1. The four appellants in this case were each sentenced to 8 months’ imprisonment following their pleas of guilty to individual charges of managing the same vice establishment.  The prosecution arose out of an operation called “Operation Flamewood”, which involved the infiltration of undercover police officers into vice establishments by having them take jobs there. One such establishment was the Golden Fai Karaoke Nightclub in Yau Ma Tei. This was an establishment where girls provided different, but straightforward, sexual services in individual rooms for standard prices.

2. The case against the four appellants is basically that on different shifts or occasions between mid-October and Christmas of 2003, they were left by the true owners to run the establishment for a wage.  But they knew perfectly well what was going on, provided condoms for the girls and ensured the rooms were kept clean and tidied up after use.

3. The brief facts revealed no more significant contact between the appellants and the girls, and no suggestion was made that the girls were other than willing parties.  In other words, the roles of the appellants were the usual ones of an employed manager running premises in someone else’s prostitution enterprise.

4. The magistrate took a 12-month starting point which was consciously a high one, and he did that to reflect that the crime was prevalent in the Court’s locality, that the criminal conduct lasted over a period of time, and that some of the girls were underage as well.

5. Mr Morley, who has presented this appeal very nicely, takes issue with that last and important point about the girls being underage.  And let me say immediately, if I had to deal with this case today on the basis that there were girls under 16 prostituting themselves in these premises to the knowledge of these appellants, I would dismiss the appeal immediately.  Mr Morley convincingly demonstrates that in fact underage prostitution was never a part of the prosecution’s case presented to the magistrates below, that his clients’ pleas of guilty never acknowledged that to be the case and that he was never given an opportunity to deal with the issue when he addressed the magistrate in mitigation.

6. The closest the brief facts came to dealing with the question of the age of the girls was in paragraph 2, which related that the undercover officer was responsible for serving clients, tidying-up rooms, monitoring a CCTV and, I quote, “informing girls aged under aged 18 to leave when visited by police.”  The brief facts did not seek to attribute that instruction to do this to any one of the defendants, and the facts did not deal with the ages of the girls involved on the occasions which were witnessed and spoken to by the undercover police officer.

7. Such an important factor as the prostitution of underage girls should not have been left to be dealt with by a side wind, and certainly not without the defence being alerted to it.  But the live issue today is how the prosecution present the case to me.  Mr Cheung, for the respondent to the appeal, very realistically concedes that he cannot, on the basis of the brief facts, invite me to deal with the case on the basis that prostitution occurred involving underage girls.  Thus a very significant aggravation disappears from the case.

8. There are no guidelines for cases like these. Criminal lawyers have long known in Hong Kong that the range goes from suspended sentences and probation and community service at one end, up to about 18 months’ imprisonment at the other. And I have a schedule today handed to me that tells me what happened in the 27 vice cases that arose out of this operation.  It involved over 70 people.  Of the 27 cases, 19 resulted in defendants being given suspended sentences of imprisonment.  Three involved community service, two were acquitted, and in six of the cases people received short terms of imprisonment and in nearly all cases - not quite all but nearly all - less than the 8 months in this case.  Most of the prosecutions were for managing a vice establishment and where that wasn’t the case it was assisting in the management of a vice establishment.

9. It has always been my experience that adults with a clear record who plead guilty to managing a vice establishment where there are no aggravating features, in the same way that these appellants did, have a reasonable prospect of avoiding an immediate custodial sentence, although there was no guarantee of it.       It depended very much upon which court you ended up in, because it seems to me there are two approaches to sentencing here.  One  - and it is the one adopted by the magistrate in this case -  is to say that if we are to defeat the trade in prostitution, the front-line men and women have to go to prison, as the success of the syndicates depend upon them doing their job.  The other approach recognises that imprisoning, for a relatively short time, otherwise decent men and  women who have not been in trouble before is not realistically ever going to stop organised prostitution, and that imprisonment should be reserved for instances which display any one of those well-known mischiefs that commonly attend prostitution.

10. I find the latter argument the more attractive, but if I thought that was out of step with what was happening in the magistracies, I would be very slow to do otherwise than confirm the sentence.  But, clearly, looking at what happened in “Operation Flamewood”, that latter approach is the one, it seems, that is being adopted more commonly than the deterrent argument.  No one is in a position to tell me, but I suspect, given the probabilities, that of those six cases where there was imprisonment there would have been previous similar convictions.

11. So, I am going to do what happened in the majority of the cases in “Operation Flamewood.”  I am going to pass the sentence of 4 months’ imprisonment and suspend it for two years.

12. Finally, let me just deal with this. We have avoided argument about the role of disparity in sentencing.  But no one in common justice could ignore the fact that the boss of this karaoke, who was prosecuted separately,  pleaded guilty.  His case was far graver than that of the four before me and he received a suspended sentence of imprisonment.

13. Part of the problem of having some people sent to prison and some people receiving suspended sentences was promoted in this case because the prosecution chose to bring a whole number of small prosecutions. In my view, it would have been far better to take each of the premises concerned and prosecute everyone involved in those premises over the relevant period of time together in one case.  Breaking it up into small parts just exacerbates the problem.  And it means, for instance, that the magistrate who dealt with this case had two pages of brief facts informing him about what had gone on at the karaoke; the boss had four pages.

14. Sentencing is much fairer if the sentencer has the whole picture, so let us hope in future that, if there are similar prosecutions, cases are grouped together and brought together sensibly to deal with each set of premises involved.