HKSAR v. IP CHI KWONG AND OTHERS

DCCC 40/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 40 OF 2014

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Reasons for Sentence

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1.  The three defendants have pleaded guilty to a joint charge of living off the earnings of a prostitute, “Miss X”. The offence was committed between a day unknown in July 2013 and 2 September 2013. It is admitted that the offence was effectively committed over a period of one month.

2.  Miss X was born on 25 April 1998, so she turned 15 a few months before the commission of the offence.

3.  The proceedings arose following investigations by the Hong Kong Police Force concerning online advertisements for what is known as “compensated dating”.  This is a euphemism for “prostitution”.  The term is used to make the activity seem more acceptable and less reprehensible.

4.  At 8 pm on evening of 8 August 2013, Miss X and a man aged 29 were seen by police officers entering an hourly hotel in Pitt Street, Yau Ma Tei.  15 minutes later, the officers conducted a licence check at the premises and found Miss X and the man fully dressed inside one of the rooms. Miss X said that the man had kissed her breasts, touched her breasts and buttocks with his hands, and that she had masturbated him.

5.  When interviewed, Miss X told the police that the 2nd defendant in this case was her agent and had arranged for her to work as a compensating dating girl since July of 2013.  Miss X said that customers were charged more if they wanted her to dress in particular clothing, such as school uniforms or as a nurse.  Miss X said that D2 had told her that it was better to have an agent, as she could ensure her safety, payment by customers and promote her profile online.  Miss X said that a working schedule had been prepared for her by D2 with regard to appointment with customers by date, time and venue.  A mobile phone WhatsApp group chat facility had been arranged, designated “For Work Only”. 

6.  Miss X said that she and the 3rd defendant, whom she referred to as her boyfriend, cohabited at Flat G, 18th Floor, Paradise Square, Kwong Wa Street in Kowloon, “Flat G”.

7.  Miss X said that the 1st defendant drove her to the various hotels to meet customers.

8.  The police conducted a surveillance operation in the vicinity of Flat G.  At 9.20 pm on 4 September 2013, Miss X was seen to leave Paradise Square and meet another female, “To To”, and they went by taxi to Kowloon MTR station, where they met a man aged 30.  The three of them went to a hotel in Norfolk Road, Kowloon Tong, which they left at 10 past 1 in the early hours of the following morning.

9.  X and Toto went by taxi to Block 1, Tsui Yuen Mansion in Waterloo Road.  Toto lived with the 1st and 2nd defendants in Flat 4 of that building, “Flat 4”.

10.  Toto went to Flat 4 whilst Miss X returned to Flat G.

11.  At 2 am on 5 September, police officers entered Flat G.  D1 and D2 attempted to flee the premises and D3 was present with Miss X and another female aged 60, who was the housekeeper.  The three defendants were arrested.

12.  Police enquiries at the property management office of Flat G revealed that D1 and D2 were the contact persons for any emergencies.  D2 also had a key to the flat.

13.  Flat G and Flat 4 were searched, and the mobile phones and i-tablets of the defendants were seized and examined by police officers, who retrieved from them WhatsApp messages, photographs and working schedules.  On some days, Miss X had appointments to meet as many as five customers.

14.  Notebooks were seized from X and the defendants.  There were common entries in the notebooks of Miss X and D2, and D2’s WhatsApp chat designated “For Work Only” relating to sex appointments for Miss X.  The other defendants were in this group.  Over 5,800 WhatsApp messages passed between them.  Frequently, D2 was advising Miss X where to meet customers. 

15.  In one series of messages, Miss X complained that her private parts hurt.  D2 told her to carry on working and to take a rest later.

16.  In another message, Miss X complained to D3 about her work and they argued about it.

17.  There was a whiteboard on the wall of the premises, which showed the appointments for Miss X the following day.

18.  Seized from Flat G were “uniforms” that Miss X would sometimes be asked to wear for extra pay.  They included an imitation nurse’s uniform with a white G-string and white silk stockings, two pairs of leopard-skin tights with different patterns, a school uniform, a pink-and-black nightie, a black-coloured maid’s dress with lace white frills, and a bikini with “Union Jacks”, a kimono, net stockings and black silk sling stockings with red garters.

19.  The police also seized from Flat G 56 condoms, two dildos from the master bedroom of X and D3.  Four condoms and a tube of lubricant were found in X’s shoulder-bag and from that bag the police also recovered a school uniform and a working schedule.

20.  Notebooks belonging to D2 showed numerous entries of phone numbers and names of customers, dates and times for X to meet them, and the general area and dates and amounts earned. 

21.  Photographs of Miss X in various poses wearing various items of clothing as described above were recovered from the phones of X, D2 and D3.  There were 313 in the phone belonging to Miss X, 386 in the phone belonging to the 2nd defendant, and 368 in the phone belonging to the 3rd defendant.

22.  The notebook records reveal that the average payment for each sex appointment was $1,500.

Video recorded interviews

23.  D1 said that the 2nd defendant was his girlfriend and that they lived together.  He admitted that he drove a car owned by the 2nd defendant to convey Miss X to various locations where she had appointments for sex and would sometimes wait to convey her back to her flat. He said that he sometimes received $500 from Miss X after she had had an appointment.  He said that the $3,500 found upon him when he was arrested had been given to him by Miss X to keep for her.

24.  The 2nd defendant said she came to know Miss X through the 3rd defendant in about June or July of 2013.  She said that she knew that Miss X wanted to make money and she knew how to introduce customers to her.  She arranged working schedules and for sending photographs of X to customers.  The 2nd defendant said that she knew To To had a customer who liked the services of two girls, and she had asked Miss X to go along with To To. She said that after that appointment Miss X had returned to Flat G and given her $2,600.  The 2nd defendant admitted that her boyfriend (the 1st defendant) would use her car to take Miss X to appointments.

25.  The 3rd defendant said he had met Miss X a half-year before.  He said that he had asked her to work as a prostitute in July of 2013.  He said he had discussed this with friends (D1 and D2) as a way of making quick money.  D2 would locate and make arrangement for the customers and the 3rd defendant would act as a bodyguard.  He said he received $500 from each sex trade and earned a total of 5 to 6 thousand dollars.

26.  The 3rd defendant said that the 2nd defendant rented Flat G at $14,000 per month and Miss X would pay $10,000 towards that and the 2nd defendant would give $1,500 per month to the housekeeper.

The criminal records of the defendants

27.  The 1st defendant has minor matters recorded on his record as a juvenile.  In 2010 he was sentenced to 14 months’ imprisonment for trafficking in dangerous drugs.  I am told that he was released from that sentence of imprisonment in April of 2012.

28.  The 2nd defendant has appeared in court on three previous occasions.  In October 2009, for five offences related to money-laundering, she was sentenced to a total of 3½ years’ imprisonment. 

29.  The following day, she appeared before the Magistrates Court in respect of offences relating to controlling other persons for the purpose of prostitution and other related offences, and was sentenced to 4 months’ imprisonment.  That sentence was ordered to run consecutively to the sentence imposed in respect of the money-laundering offences.

30.  I am told that she was released from prison in 2012.

31.  The 3rd defendant had a clear record at the time of his arrest.  On 29 November, he appeared in the Magistrate Court for possession of a small quantity of “Ice” and equipment relating to its use. These charges arose as a result of a small quantity of “Ice” and paraphernalia being seized from the flat when he was arrested in respect of these proceedings.  In respect of those offences, he was ordered to be detained in a detention centre.

32.  I was told that the main mitigation is that they all pleaded guilty and all made admissions at the time of their arrest.  They pleaded guilty against the background of knowing that Miss X was unlikely to be available as a prosecution witness.

33.  In respect of the 1st defendant, I am told that he is 30 tomorrow and his role was restricted to driving Miss X to various locations and would receive $500 per time.  However, I note that he was living with the 2nd defendant, driving her car, and they shared that flat with another prostitute.  I was told that Miss X had told him that she was 17 years of age and there was no element of coercion involved in this case.

34.  The 2nd defendant is aged 32 and lives with the 1st defendant, who is her boyfriend.  I am told that she comes from a broken family.  I am told that her parents separated when she was young because of the violence of her father towards her mother.  She moved out of the family home when she was 17 and has had different jobs working in sales.  In 2005, she had worked as a hawker and I am told that this led to her prosecution, which involved the selling of forged handbags.  I am told that she worked in a pet shop after that and learnt to be a pet beautician and opened up a shop in 2006. 

35.  In 2007 she allowed her bank account to be used by another person.  This led to her prosecution in respect of the money-laundering offences.  I am told that all the money she had accumulated till then was spent on legal expenses and she was obliged to sell her shop.  I am told that she later became involved in the sex trade in 2008. 

36.  I am told that once she was discharged from prison in 2012, a previous boyfriend of hers approached her and he owed a debt to a loanshark of $300,000 and she shouldered most of that loan.

37.  D2 also said that, as far as she was concerned, she was told that Miss X was 17.  She admitted that she introduced customers to X and got $500 per time.  I am told that after 8 August she introduced no new customers.  I am told that the uniforms that were used were purchased by Miss X and she would give a list of customers to Miss X.

38.  The 3rd defendant is aged 21 and is single.  His father was in court on the previous occasion, but because of a stroke is suffering from ill health and is in a frail condition.  His mother abandoned the family when he was young and he was brought up by his father and has no brothers or sisters.  He left school at 17 and worked as a waiter and as a lights worker in theatres.  He had a clear record until his arrest in connection with these offences.

39.  As counsel have said, there are no tariffs in respect of offences of this type. 

40.  Two cases have been placed before me.  One is a 1988 case:  R v Tam Yui Kwong, CACC 323/1988.  That was an appeal against a sentence of 18 months imposed in respect of the defendant who was convicted of an offence of living on the earnings of prostitution.  The applicant in that case was 57 years of age and the prostitution was nearly 16. The prostitute had abandoned her parents and went to stay with the applicant and engaged in prostitution at his home.  The sentence imposed in that case was a sentence of 9 months’ imprisonment after appeal.

41.  In the other case cited, HKSAR v Pang For Cheuk, CACC 623/1998, the appellant was convicted after trial before HH Judge Toh in the District Court.  He was sentenced for offences of living on the earnings of a prostitute and a charge of criminal intimidation to 18 months in respect of the living off the expenses charge and 12 months consecutive on the criminal intimidation charge.  The girl in that case was 17 years of age.  She was taken by her boyfriend to work as a prostitute to pay off a debt which her boyfriend had incurred and in respect of which she was the guarantor.  When she tried to cease acting as a prostitute, pressure was put upon her to continue and the court said in that case that the sentence of 18 months was appropriate and not in any way excessive.

42.  The maximum sentence for this offence is 10 years’ imprisonment.  A custodial sentence is inevitable for this kind of offence.  Where the circumstances are accompanied by an element of exploitation or if the prostitute is young, deterrent sentences are required.  It is a matter of public policy that the law must protect young and immature girls who are exploited by unscrupulous older persons.

43.  The defendants say that they thought Miss X was 17.  The fact is that she was 15.  She is too young and immature to understand the true implications of what she was getting into,  the significant risks of being infected with sexual transmitted diseases and the limiting effects the decision to participate in prostitution would inevitably have on her self-regard and her later life.

44.  When interviewed, the 3rd defendant described himself as her boyfriend.  He was neither a boyfriend, in the real sense of that expression, or a friend.  He had no regard for her best interest or her well-being.  It is clear that he regarded her simply as a person he could exploit and recruited his friends to assist in that task. 

45.  Arrangements were put in place to ensure that the defendants got the most out of Miss X.  A WhatsApp group chat-line was set up.  She was given a working schedule.  She was encouraged in the use of uniforms and other paraphernalia to obtain extra money.  Numerous photographs were taken of her wearing suggestive clothing to promote her as a prostitute. She would often serve five customers per day.  When she complained of soreness, she was told to carry on.

46.  The defendants have admitted the offences immediately when they were arrested and pleaded guilty, as I said before, even when they knew Miss X was unlikely to be available to give evidence.  Their pleas have saved considerable court time.

47.  Taking into account all the circumstances of the offence, I take the view that a starting point of 18 months is appropriate.

48.  This will be reduced by one-third to reflect the guilty plea.

49.  The defendants will, therefore, go to prison for 12 months.