R. v. CHAN SO HING

IN THE COURT OF APPEAL

1996, No. 309

(Criminal)

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J U D G M E N T

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Mayo JA giving the judgment of the Court:

1. The applicant seeks leave to appeal against her convictions on one count of keeping a vice establishment (count 1), one count of controlling a person for the purpose of prostitution (count 3) and one count of living on the earnings of prostitution (count 5). She also seeks leave to appeal against the total sentence of two years' imprisonment imposed upon her for these offences. She was charged with another defendant. He was convicted of assisting her in keeping the vice establishment and controlling a prostitute and two immigration offences.

2. The applicant's co-defendant took part in making arrangements for a 20 year old Chinese girl from the mainland to come to Hong Kong and work as a prostitute. She was the main prosecution witness (PW1).

3. The prosecution case was that the applicant was acting as the proprietress of a vice establishment run at premises at Kiu Cheong Mansion, Hong Ning Road, Kwun Tong.

4. PW1 was brought to her establishment to work as a prostitute. She was told that she had to repay the cost of bringing her to Hong Kong. She would have to service 120 customers to repay her indebtedness. Thereafter she would receive $100 for each occasion she permitted men to have sexual intercourse with her.

5. As she had no friends or relatives in Hong Kong and no money she considered that she had no alternative but to fall in with the plans which had been made for her.

6. She did have sex with men and was paid, as the judge puts it "literally in buttons. These were shirt buttons and she was given one button for each customer that she serviced ..... The only money she ever got was the occasional tip that customers would give her". She gave evidence that she saw customers effecting payments on occasion to the applicant.

7. A police raid was conducted on the premises on 9 October 1995 after two police officers had attended the premises as decoys. Sexual services had been offered to them.

8. After the raid the applicant was arrested. She made a statement to the effect that she was keeping the establishment operating while her husband was in prison. He had been found guilty of a similar offence. In her original grounds of appeal the applicant claimed to have pleaded guilty to the offences and claimed that the judge had not listened to the plea of mitigation made on her behalf.

9. The perfected grounds of appeal are framed as follows:

"1. In the circumstances of this case the Learned Judge erred in law in convicting the applicant on Charges 3 and 5 as they were otiose.

Alternatively

2. The Learned Judge erred in law in convicting the applicant on Charge 3 as it arose out of one and the same incident as Charge 5."

10. No objection along these lines was taken at the trial below. The applicant would not appear to have been prejudiced in any way as a result of the matter being proceeded with in the way it was. Over and above it is clearly the case that different considerations can arise under the different charges.

11. Section 130(1) of the Crimes Ordinance, Cap 200 reads as follows:

"130. Control over persons for purpose of unlawful sexual intercourse or prosecution

(1) A person who -

(a) harbours another person or exercises control or direction over another person with the intention that that person shall do unlawful sexual acts with others; or

(b) harbours another person or exercises control, direction or influence over another person for the purpose of or with a view to that person's prostitution,

shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 14 years."

and s137 of the Crimes Ordinance Cap 200 reads:

"137. Living on earnings of prostitution of others

(1) A person who knowingly gives wholly or in part on the earnings of prostitution of another shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 5 years.

(2) For the purposes of subsection (1), a person who lives with or is habitually in the company of a prostitute, or who exercises control, direction or influence over another person's movements in a way which shows he or she is aiding, abetting or compelling that other person's prostitution with others, shall be presumed to be knowingly living on the earnings of prostitution, unless he or she proves the contrary."

12. Mr Coghlan accepted that there was sufficient evidence to support both charges even though it may not amount to very much evidence.

13. The question which has to be considered is whether the conviction under count 5 subsumed all of the ingredients of count 3.

14. What has to be appreciated is that living off the earnings of a prostitute may involve entirely different considerations to controlling a prostitute.

15. Mr Coghlan cited R. v. Harris 53 Crim. App. R. 376 as authority for the proposition that it was wrong to merge the charges together where the subject matter of the charges was the same. This however was not the position in the present case.

16. It would appear however that the trial judge may have been under the mistaken impression that the supporting facts were similar as he refers to this at p18 of the bundle and cites Shaw v. Director of Public Prosecutions [1962] AC 220 which would indicate that he was under this impression.

17. However as has been indicated it is clear that there was sufficient evidence to support convictions on both counts 3 and 5 and necessarily this evidence would not have been identical on both counts. This being the case the application for leave to appeal against conviction cannot succeed and it is accordingly dismissed.

Sentence

18. Mr Coghlan indicated that he did not wish to pursue the applications for leave in respect of the concurrent sentences of 9 months' imprisonment each imposed on counts 3 and 5.

19. He did however submit that the sentence of two years' imprisonment on count 1 was manifestly excessive. He took us through a number of cases where the sentences imposed had been less than two years.

20. We have already indicated the factual background of this case. It is also necessary to add that the applicant had previous convictions for offences of this nature.

21. The operation of the vice establishment was on quite a substantial scale.

22. While we accept that the sentence of two years' imprisonment was at the higher end of the range of appropriate sentences for this offence we are not persuaded that the sentence was either manifestly excessive or wrong in principle. This application is also dismissed.