HKSAR v. LAW WAI KON

 DCCC646/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 646 OF 2008

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Reasons for Sentence

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1.  The defendant pleaded guilty to a charge of trafficking in persons from Hong Kong, contrary to section 129(1) of the Crimes Ordinance, Cap.200.

2.  According to the admitted facts, in March 2007, the police mounted an undercover operation in response to an advertisement that appeared on a local newspaper, Oriental Daily News, for women to work as a prostitute in Japan, England and Taiwan.  After a series of police investigation, a woman police constable posed as an undercover agent, managed to contact the defendant in relation to the aforesaid advertisement. 

3.  The defendant told the undercover agent that if she agreed to go to work in Chiba, Japan as a prostitute, she could earn several tens of thousand dollars each month.  The defendant also told the undercover agent that he would assist her in making all the necessary arrangement to go to Chiba, Japan to work in a bar subsequently.  And in return for the arrangement, the defendant would charge $13,000 as commission. 

4.  After the initial meeting, the defendant contacted the woman undercover agent again on 30 May 2007, and he accompanied her to go to a travel agent in Mongkok to purchase an air ticket for a flight to Tokyo scheduled for 12 June 2007.  The defendant offered to collect the ticket on her behalf.  On the same occasion, the defendant told the woman undercover agent that his boss in Japan would have to charge her 200,000 Japanese currency which would be deducted from her earnings in due course.

5.  On 11 June 2007, the defendant met this undercover agent again.  He gave her the air ticket.  He showed her a photo album with photos of the airport in Japan.  The defendant gave her some coins for her to make phone calls upon her arrival in Japan.  Defendant also gave her contraceptive pills and KY lotion which were apparently supposed to be used by the undercover agent when she worked in Japan as a prostitute.  Defendant also gave her some information on this trip to Japan which included a false address to be used by her in Japan.  The woman undercover agent was told that she would have to pay $2,000 as rental for her accommodation in Japan.  At this point, other policemen appeared and arrested the defendant.

6.  This is a case originally set down for a retrial following the defendant’s successful appeal against his convictions in the original trial.  I am aware that the defendant faced more than one charge at the original trial whereas today he only faced one charge. 

7.  The defendant is a man of clear record.  According to the information I got, the defendant appeared to be a man of good educational background.  He had been gainfully employed for a number of years before he committed the present offence.  I am told that the defendant committed the present offence because of financial reason.  I have also been told that the present case was part of a police operation which brought about a number of similar prosecutions against other defendants.  For these other cases, the longest starting point adopted by the court appeared to be 2 years’ imprisonment whilst the shortest was 8 months.

8.  While I can understand for the defendant who is prosecuted along with other defendants in situation arising out of the same set of facts, he may expect the court to take into account in his favour the sort of sentence or sentences that have been imposed on other defendants.  I have to make it quite clear to the defendant in the present case that all other sentencing cases which were arising out of the same police operation only have persuasive effect on this court.  It is well-accepted that there is no tariff for this sort of offences in Hong Kong.  Therefore, at the end of the day, each case will have to be decided on its own facts.

9.  For the present case, the conduct of the defendant cannot be described as insignificant.  It is apparent that the defendant was at the time part of an international syndicate that was recruiting females in Hong Kong for them to work as a prostitute in a foreign country.  Though there is no evidence that this syndicate had ever used force or threat on the girls who wanted to take up this job, the conduct itself is serious enough to attract a deterrent sentence. 

10.  The defendant has played a significant role in this case.  He has had a number of meetings with the undercover agent.  He brought her to purchase air ticket.  He supplied her with all the necessary information such as a false address for her to use in Japan to make sure that everything worked out as planned.  A commission of $13,000 would be charged by the defendant, and a fee of 200,000 Japanese currency would be charged by the boss of this defendant for arrangement made on behalf of the undercover agent.

11.  I cannot see any other appropriate sentence other than a custodial one.  I have carefully considered all the relevant circumstances in this case.  I adopt a starting point of 20 months.  A defendant who pleads guilty to a charge would normally expect a one-third discount, but the situation here is different.  The defendant only pleaded guilty to the charge that he faced at the time of the retrial.  In my judgment, he does not deserve a full one-third discount.  I take the view that a 25 per cent discount is appropriate. 

12.  I have also considered other circumstances surrounding the defendant’s background.  I have failed to find any other relevant or valid mitigation that can enable me to further reduce his sentence.  So the sentence stands at 20 months as the starting point, and the defendant is only going to get one-fourth discount.  If my arithmetic is correct, the sentence will be reduced to one of 15 months.

13.  In a normal situation, if a defendant is sentenced to 15 months’ imprisonment, then he will be taken into custody of the Correctional Services Department, and he has to do his time in prison until such time that the Correctional Services Department takes the view that he has done all his time in prison.  Then he will be released.

14.  If my understanding is correct, a defendant will normally be entitled to some remission for his good behaviour in prison.  I cannot at this point come up with a figure that would represent the sort of remission that this defendant will get, but I have a solid figure here, I have a concrete figure here.  The defendant has been remanded in custody between 18 November 2008 and 23 October 2009, which is 26 days short of a 12-month imprisonment term without remission.  On the assumption that the defendant will get some remission and if I sentence the defendant to be detained in prison today, the time the defendant has to spend in prison may eventually be longer than he should have been held in prison, of course always subject to good behaviour for remission of his sentence.

15.  In order to avoid the risk of making the defendant serve a longer sentence than he should, I am prepared to impose such a sentence that would not result in the defendant being taken back to prison today.  As I earlier said, the defendant has done more than 11 months in prison before he succeeded in his appeal against his convictions.  That, in my view, would be almost equivalent to a 16 to 17 months’ imprisonment term in normal circumstances.  I do not think that it would be fair to the defendant to allow him to be taken into custody again.  The result is this: the defendant is convicted and sentenced to such a sentence that would allow his immediate release today.

(Discussion re sentence)

16.  But I will ask Miss Ko to do whatever she can to make sure that you do not have to go back to prison today.  But if that, unfortunately, happens, I do not think that would result in you being held in custody longer than necessary.  Of course, I do not expect that to happen.

(Discussion re sentence)

17.  But one final word, Defendant.  The sentence that I imposed on you is not a lenient one.  Right?  So do not be misled into thinking that this is the sort of business that you perhaps may consider involving yourself again in the future because if you commit similar offence again in the future, you will - I can assure you - you will face a much tougher sentence.