HKSAR v. FUNG KA CHUN AND OTHERS

DCCC 199/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 199 OF 2016

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REASONS FOR SENTENCE

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Introduction

1.  The first defendant (D1) is convicted after trial of one charge of living on earnings of prostitution of others, contrary to s 137(1) of the Crimes Ordinance, Cap 200.

2.  The second and the third defendants (D2 and D3 respectively) are convicted after trial for aiding, abetting, counseling and procuring D1 in the aforesaid offence, contrary also to s 89 of the Criminal Procedure Ordinance, Cap 221. 

3.  The facts and evidence of the case are summarized in my Reasons for Verdict which I am not going to repeat.

4.  To assist me in sentencing, I have sought Suitability Reports for Community Service Order in respect of all defendants.  However, they have been warned that all sentencing options are open.

Sentencing authorities

5.  The offence of living on earnings of prostitution of others carries a maximum sentence of 10 years’ imprisonment on indictment.  The same applies to secondary liability of that offence.

6.  There is no sentencing tariff for this offence and the sentence depends on the particular facts of the case.  The relevant factors for consideration include:-

(a) the scale of the prostitution;

(b) the length of the offence;

(c) the number of prostitutes involved;

(d) the origins of the prostitutes and/or whether they are of an age which make them susceptible to manipulation and exploitation;

(e) the role of the defendant;

(f) whether the defendant has similar previous records; and

(g) the amount of the defendant’s gain.

See HKSAR v Tam Ka Chun Danny[1]

7.  Whilst “control” over the prostitutes is not an element of the offence, it is a factor to be taken into account as regards sentence: see HKSAR v Chan Yuk Bun,[2] which was also referred to in HKSAR v Tam Ka Chun Danny.  In Chan Yuk Bun’s case, the Court of Appeal said, “It is clear from other cases that the element of control is arguably the single most significant feature in arriving at an appropriate sentence”.  The appellant ran a website on the internet which provided for advertisement of services rendered by prostitutes working in one-woman brothels and hotels and he charged $600 per advertisement per month.  He employed people who helped him design, manage and support the website and take photos of prostitutes.  During the 3 years offence period, over $6.5 million was deposited into the appellant’s bank accounts.  The appellant admitted that his monthly profit, after deducting expenses, was around $90,000 to $100,000.  The appellant’s offence, whilst very lucrative, was said to be a straightforward commercial operation with no threatening or other sinister undertones attached to it.  The appellant was a 50 years’ old man and of clear criminal record.  The Court of Appeal said that in the circumstances the appropriate sentence should have been a Community Service Order and the imposition of a substantial fine.

D1

8.  Turning to the present case, D1 operated a website called "hkbigman" and one forum of which was “the Adult Forum”.  I have found that despite some attempts by D1 to dress the forum up as just a dating forum, it was in fact was intended and used by him to facilitate prostitution of females who had registered as members of hkbigman. D1’s earnings came not from females members, but from male members in the form of membership fees and the sales of “gold coin” which male members required for browsing female members’ information and making “dating” requests.  I have found that what D1 did amount to the offence charged and that the offence period lasted for about 29 months running from 1 September 2012 to 14 January 2015.  Based on the information provided to me by the prosecution ([P26], [P26A] and [P26B]), which is not objected to by the defence, there were 76 “accredited” female members.  From the evidence, there would be some female members who had not been “accredited”.  Nevertheless, the number of “accredited” female members gives the court some idea as to the number of prostitutes using D1’s website.  As regards D1’s earnings, the bank evidence shows that during the offence period there were membership fees in the total amount of $1,516,480 and the sales of “gold coin” in the total amount of $258,780 deposited into D1’s bank account, making a total of $1,775,260 which means an average of about $61,000 per month.

9.  On the other hand, similar to the case of HKSAR v Chan Yuk Bun, D1 did not arrange or introduce male and female members to meet.  Members arranged meetings themselves.  From the evidence female members were locals working as freelance prostitutes.  There is no evidence that D1 had exercised any form of control over them.  Neither was there any coercion nor exploitation.  There is no evidence that any underage girls were involved, as there was a requirement that female members had to be aged between 18 and 26.  On the evidence, D1 was the sole operator of hkbigman and employed no one, although there were people, notably members of the website, who volunteered to assist him as moderators of certain sub-groups under the Adult Forum.

10.  As regards D1’s personal circumstances, he is aged 33.  He is educated up university level and has developed an IT career.  He has a clear record.  He is single, living with his parents and younger sister. 

11.  In the CSO Report, D1 is praised by his former employers as a diligent, resourceful and decent IT expert.  It notes also that he had a entrepreneurial spirit.  It is said that his employers are sad to see the defeat of D1’s effort to use his IT expertise for his moonlighting venture due to his “negligence” of overlooking his legal liabilities for other members’ act done on his website.  It is also said that D1 sincerely apologizes for his “negligence” in running his part-time online business.  However, I have to point out that “negligence” is an entirely inapt description of D1’s wrongdoings.  As noted in the Reasons for Verdict, it was D1’s professed purpose to facilitate the sex trade of “CC” (私鐘) which is a pseudonym for freelance prostitutes.  That said, I am prepared to treat this inaccurate description of D1’s criminality as an expression of his ignorance of the law in that he thought what he did was legal when it was not, rather than an indication of lack of remorse. 

12.  In view of the facts of the present case, D1’s personal circumstances and the recommendation in his CSO report, basing on HKSAR v Chan Yuk Bun, I consider that the appropriate sentence for him is a CSO coupled with a substantial fine.  D1 consents to the making of a CSO.  I have also conferred with Mr Davies, counsel for D1, about D1’s financial ability.  I impose on him a CSO for 240 hours and a fine of $100,000, the latter to be paid within 30 days.  In a moment I will explain what a CSO is to him.

D2

13.  As regards D2, he was a member of “hkbigman” and had through the Adult Forum obtained sexual service from a prostitute.  Subsequently, he volunteered to be the moderator of the “Dating Girl Report Group” of the forum and set rules for the group which aimed at enhancing reliability of reports posted there.  D2’s role as moderator also entailed highlighting reports on “performance and service” of female members for reference of other male members.  Even though D2’s motive might have been to help fellow male members in picking the right girls for sex, I have found that D2 knew that what he did would also be beneficial to the business of hkbigman by building up customer trust and confidence which in turn would help D1 make more money.  On the other hand, his assistance to D1 was limited and it lasted for only about 5 months.  I accept also that D2 had made no financial gain from the offence.

14.  As regards D2’s personal circumstances, he is aged 34 with a clear record.  He is single and living with his mother and younger sister.  He is a university graduate with a master degree in electrical engineering.  He works as a project manager earning a monthly income of $30,000 from that job.  

15.  In view of D2’s limited role and the short duration of his offence, his personal circumstances and the recommendation in the CSO report, I consider that he is a suitable candidate for CSO.  D2 also consents to the making of a CSO.  I impose on him a CSO for 160 hours.  In a moment, I will explain to him what a CSO is.

D3

16.  As regards D3, she was a female member of hkbigman and a freelance prostitute using the Adult Forum to facilitate her sex trade.  Although she was only charged for offering assistance to D1 over a period of 7 months, the evidence discloses that her assistance to D1 had been much more extensive than that of D2.  Apart from taking the role of moderator in the “Social Networking Section” of the Adult Forum, she also proactively offered advice and help to D1 as to how hkbigman should be run.   Besides, she introduced other prostitutes to join as members. On the other hand, there is no evidence that D3 had derived any financial gains for her assistance rendered to D1.

17.  As regards D3’s personal circumstances, she is aged 24 and is single.  She is educated up to Form 2. She is now unemployed and living on public assistance.  According to the CSO report, D3 has a daughter with her former boy friend and the daughter has for some time been living with a foster family.   D3’s relationship with her parents is very poor and they are not on speaking terms.  She does not have a fixed place of abode.  Moreover, the urine test suggests that she is still addicted to ice. 

18.  D3’s case presents some sentencing difficulties.  She is not recommended for CSO because of her drug addiction and her apparent uncooperative attitude to the Probation Officer.  She is now too old for training centre and in any event her addiction would make her unsuitable for that option.  She has no financial means to pay any meaningful fine.  A probation order, on the other hand, would in my view be unduly lenient for her offence.  Moreover, given the comments of the Probation Officer, I doubt very much whether probation would in any event be viable. 

19.  In the circumstances, I am seriously considering a custody sentence against D3.  Nevertheless, in view of Ms Lai’s mitigation on D3’s behalf, I am minded to order a Probation Officer’s Report to canvass the possibility of D3 receiving voluntary drug treatment and a further CSO report to see whether she would be suitable for CSO with conditions attached.  I adjourn D3’s sentence to 16 December 2016 at 9:30 am pending the aforesaid reports.