HKSAR v. LAI KAM FUNG

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 317 of 1997

________________

___________

________________

J U D G M E N T

________________

Chan, CJHC:

1. The appellant pleaded guilty to two counts of permitting premises to be used as a vice establishment. She was sentenced to two months' imprisonment on each count, both sentences to run concurrently. She was also fined $5,000 for each offence. She now appeals against sentence.

2. According to the admitted facts, on two different occasions as specified in the charges, within a course of about one week, the police went to the premises in question at a certain unit in Kam Heung Building in Aberdeen. It was not disputed that the premises were used as a vice establishment. The appellant was the tenant of the premises, but she was not present on both occasions. She paid $6,800 per month to the landlord. She later surrendered herself to the police. She also pleaded guilty to the charges.

3. The learned magistrate took the view that the offence of permitting the premises to be used as a vice establishment was just as serious as the offence of managing it. He took the starting point at six months. Having taken into account the appellant's plea of guilty and her personal circumstances, the learned magistrate imposed the present sentences as an act of mercy.

4. The appellant had two previous convictions, the last one in 1989. It was submitted on her behalf that she had sublet the premises at a rent of $9,000 to others who ran the place as a vice establishment. That was why at the time of the two offences, she was not present in the premises. She was 39 years of age and had five children, ranging from 12 years to 20 years. Her husband was a driver who earned $9,000 per month. She now works as a part-time dish-washer earning about $3,000 to $4,000 per month. She was also said to have a medical problem.

5. The main ground of appeal relied on by counsel was that the learned magistrate was wrong in concluding that the offence of permitting was just as serious as the offence of managing the vice establishment. It was argued that the Ordinance created different types of offences, namely, managing, assisting and permitting premises to be used as a vice establishment. These offences clearly varied in the degree of seriousness. The prosecution conceded that the learned magistrate should not have concluded that the two offences were equally serious.

6. In this appeal, counsel for the prosecution does not wish to make any submission. It seems that the confusion arose as a result of the fact that the appellant was originally charged with two counts of managing the premises as a vice establishment. The prosecution amended the charges to those of permitting. In the present case, the police raided the premises on two occasions within a week but could not found the appellant there. The only evidence against her was that she was the tenant/sub-landlord. There is no evidence that she had been involved in any other aspect in connection with the vice establishment apart from obtaining the difference between the rentals as profit. It would seem that the profit was about $2,200 per month.

7. In view of the circumstances and her personal situation, I should think that it is a sufficient deterrence if she is given a fine which would have the effect of depriving her of any profits out of rental which she had made for the last few months together with a stern warning that if she repeats the offence again, she would receive a custodial sentence. A suspended sentence would be the best means to serve as such a warning. I would therefore allow the appeal in part. The sentences of two months each for the offences shall be suspended for 18 months. The fines would remain.