ATTORNEY GENERAL v. CHAN SHUM FU

Headnote

                    Review - managing a vice establishment - keeper and manager - rank of accused not a deciding factor - court to consider his role -young girls volunteered to be prostitutes.

BETWEEN

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JUDGMENT

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Yang, J.A.:

1. This is the Attorney General's application for review of sentences.

2. The Respondent pleaded guilty to one charge of keeping a vice establishment, five charges of permitting girls under the age of 16 to be on premises for prostitution and one charge of unlawful sexual intercourse with a girl under the age of 16. For the offence of keeping a vice, establishment he was sentenced to 18 months, and for the other six offences he was sentenced to 6 months on each. The trial judge ordered the sentence of 18 months to run consecutively to the 6 months sentences, which latter sentences were to run concurrently to each other, thereby making a total of 2 years. He also ordered the sentence to be suspended for 3 years.

3. It is not necessary to go into the sordid facts of the case. Suffice it to say that the girls were all 14 or 15 years of age, and it was they who approached the Respondent for work. There was no evidence that the Respondent was making large profits out of the girls' prostitution. The offences spanned over a period of some 6 weeks.

4. On the basis of evidence heard from a number of young prostitutes in other cases, the judge was of the view that the victims in the present case was "hard as basalt ..... eager to work as prostitutes and want(ed) someone to organise them."

5. On behalf of the Attorney-General, it is argued that the sentences are in the circumstances manifestly inadequate and wrong in principle. Our attention has also been drawn to the ages of the victims, and to the previous conviction of the Respondent some 9 years ago for defilement of a girl under the age of 16 for which he was put on probation for 18 months.

6. It will be noted that under the Crimes Ordinance, the maximum sentence for permitting a girl under the age of 16 to be on premises for prostitution is 14 years (Section 141). The maximum sentence for keeping or managing a vice establishment is 7 years: vide Section 139 of the same Ordinances. By Section 124, sexual intercourse with a girl under the age of 16 attracts a maximum penalty of 5 years.

7. A number of authorities cited to us reveal that the range of sentence for managing a vice establishment is an immediate custodial sentence of 6 months plus a fine of $5,000 to 18 months. We are unable to agree with Crown Counsel's argument that the decided cases necessarily view the keeper as in some ways more culpable than the manager. Everything depends on the particular facts of the case: rank or status alone does not determine the level of sentence to be imposed. For example, in The Queen v. Wong Wai-chiu & Another ⁽¹⁾ the keeper received a heavier sentence than the manager because the keeper's offence was more serious in that he encouraged at least one of the women to come to Hong Kong from Thailand expressly for the purpose of prostitution.

8. In the Attorney-General v. Wong Shui-ying ⁽²⁾, the Court of Appeal held that we should not lightly interfere with a sentence unless we are satisfied that the sentence was wrong in principle or manifestly inadequate, and we should determine whether the judge has gone wrong in principle in exercising his discretion whether or not to suspend the sentence.

9. That the victims themselves volunteered for prostitution or were hardened prostitutes is not a factor that should weigh heavily in favour of the offender. The law is there to protect the young, the unwary, the ignorant, the innocent as well as the foolish. More often than not, the victims need to be protected in spite of what they think or do. In assessing sentences the judge needs to have regard to the protection of other young girls who might fall victim to prostitution as well as the prostitutes in the case before him.

10. The trial judge formed an opinion of these girls from other cases which he had had dealt with, in which one of them was a witness. He may be right in his view of them but they were offered very substantial sums - $150-$180 for each act of intercourse - and to a girl in the New Territories that must be very tempting indeed. This may be a "catch 22" situation in that it could be said if they are paid little they are being exploited, if a lot they are being lured but either way we do not consider that the judge was entitled to lump them all together the way he did. While there was no direct evidence of the Respondent's profits, he was prepared to pay the girls well and in cases of this sort we do not consider suspended sentences are sufficient to stop this activity.

11. Whilst there are, except for the age of the girls, no aggravating circumstances in the case now before us, there are, except for the plea of guilty, no mitigating circumstances either. The sentences imposed do however fall outside the range of sentences referred to earlier. They are in our view manifestly inadequate.

12. In the circumstances we allow the application and substitute therefor the sentences as follow -

On Charge 2 - 12 months

On charges 3, 4, 5, 6, 7 and 8 - 6 months on each charge

The sentences of 6 months to run concurrently but consecutively to the 12 months on Charge 2, thereby making a total of 18 months. This is to be an immediate custodial sentence.

(1)    (1985) Criminal Appeal No. 308

(2)    (1978) H.K.L.R. 184