R. v. LAW KIN MING AND ANOTHER

IN THE COURT OF APPEAL

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JUDGMENT OF THE COURT

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Macdougall, J.A.:

1. The two applicants pleaded guilty before His Honour Judge Wesley Wong in the District Court to keeping a vice establishment contrary to section 139(a) of the Crimes Ordinance (Cap. 200), and to living on the earnings of prostitution contrary to section 137(1) of that Ordinance. The first applicant also pleaded guilty to aiding and abetting the remaining of illegal immigrants contrary to, section 38(1)(b) of the Immigration Ordinance (Cap. 115).

2. They were both sentenced to 9 months' imprisonment on the keeping a vice establishment charge and to 18 months' imprisonment concurrent on the living on the earnings of prostitution charge. The first applicant was also sentenced to 18 months' imprisonment on the aiding and abetting the remaining of illegal immigrants charge, such sentence to be served consecutively to his other sentences. His overall sentence was therefore one of three years' imprisonment, while that of the second applicant was one of 18 months. Both applicants now seek leave to appeal against their sentences.

3. The facts of the aiding and abetting the remaining of illegal immigrants charge were that as the result of a police raid on a second floor premises at Ma Tau Wai Road, Kowloon on the 16 January 1991, two female illegal immigrants were discovered. They had both arrived from China by speed boat on the 21 December 1990 and had been met by the first applicant at Wong Shek pier. He took them to the Ma Tau Wai Road premises where they remained until the police raid. During the course of tht raid the first applicant used a set of keys to enter the premises and was promptly arrested.

4. The police also raided a premises in Reclamation Street, Kowloon where they found two other female illegal immigrants. These two girls had been working there as prostitutes to serve customers brought by the second applicant and another man. The first applicant had brought one customer on one occasion. Each customer was charged between $300 and $400 of which each prostitute was supposed to receive a 70% share.  However their shares were withheld and deducted from a sum of $50,000 comprising $10,000 to be paid as a fee for their illegal immigration to Hong Kong and $40,000 in respect of a rental deposit and the cost of furniture for the premises.

5. Between the 10 December 1990 and the day of the raid, the two women had each received between 30 and 40 customers. A set of 3 keys found on the first applicant at the time of the.raid on the Ma Tau Wai Road premises fitted the locks of the wooden door and iron grille at the front and the door at the rear of the Reclamation Street premises.

6. The second applicant later entered the Reclamation Street premises with his own keys while the police were present there with the first applicant. Both applicants made cautioned statements in which they admitted that they and three other persons had rented the Reclamation Street premises for the purpose of prostitution.

7. The first applicant, who is 30 years of age, and the second applicant, who is 31, both arrived in Hong Kong. in 1979. The first applicant has no previous convictions.  The second applicant, has convictions for theft and attempted theft.

8. In passing sentence, the judge allowed a discount of six months for the first applicant's plea of guilty on the aiding and abetting the remaining of illegal immigrants charge, a discount of three months to each applicant for his plea on the keeping a vice establishment charge and a discount of six months for their pleas on the living on the earnings of prostitution charge.

9. Miss Toh, who appeared on behalf of the applicants in this court but not in the court below, submitted that the sentences were manifestly excessive. With regard to the first applicant she submitted that although he had harboured two illegal immigrants in his home there was no evidence that he had gained any financial advantage for doing so or had coerced either of them to work. She referred us to R. v. Law Chuen Fook (unreported) Cr. App. 593 of 1588 in which another division of this court upheld a sentence of twelve months' imprisonment after a plea of guilty for aiding and abetting the remaining of two illegal immigrants. This, she submitted, indicated that the sentence of 18 months in the present case was excessive. We note however that in giving the judgment of the court Cons, V. P. said:

"we feel it inappropriate to suggest any particular period of imprisonment as being in general suitable for those convicted of aiding and abetting, save to say that those who offer opportunities of employment to illegal immigrants must expect to receive sentences certainly not less than those imposed upon the immigrants themselves."

10. As to the living on the earnings of prostitution charge, Miss Ton drew our attention to R. v. Tam Yui-kwong (unreported) Cr. App. 323 of 1988, a case in which the offender introduced the prostitute to approximately 20 men and paid her $140 on each occasion. The appropriate sentence was there held to be one of 9 months' imprisonment. The court added, however, that on the information before it, it was impossible to say that there is a norm or a tariff sentence. She submitted that the sentences on both applicants were out of line with that in Tam Yui kwong.  It was her contention that since the first applicant had brought only one customer to the Reclamation Street premises his sentence should have been less than that imposed on the second applicant, and that therefore the judge had erred in failing to differentiate between the roles played by the two applicants.

11. Miss Toh further contended that the judge failed to take into sufficient consideration the fact that the two girls were not under the age of 16 and that there was no evidence that they had been coerced into prostitution.

12. We note that in the case of R. v. Wong Wai-chiu and another (unreported) Cr. App. 308 of 1985, a sentence of 3 years' imprisonment and a fine of $10,000 for an offence of keeping a vice establishment was reduced to one of two years' imprisonment. In that case at least one of the two prostitutes involved was brought to Hong Kong for the purpose of prostitution. She was not, however, an illegal immigrant. Both of the prostitutes were voluntary participants and both were mature women, being 21 and 29 years of age respectively.

13. In the present case both girls were illegal immigrants. The measure of control that can be exercised over an illegal immigrant is manifestly far greater than that which can be exerted over a female who is legally entitled to be in Hong Kong. The two girls were kept at the Reclamation street premises in a state of virtual captivity and subjected to economic exploitation by the applicants. We think that an overall sentence of two years' imprisonment for each applicant was not excessive in respect of the keeping a vice establishment and the living on the earnings of prostitution charges, and that therefore we should not interfere with the sentences imposed on those charges. We are unable to understand why the judge passed sentences of 9 months' imprisonment on the applicants for the keeping a vice establishment charge and 18 months on the living on the earnings of prostitution charge. Bearing in mind the facts of this particular case the reverse should have been the case. However, as we have observed on many previous occasions, this court is primarily concerned with the appropriateness of the overall sentence imposed by the sentencing court rather than that of each individual sentence. That being so, we do not propose to disturb the individual sentences. The applications for leave to appeal against them are therefore refused.

14. As to the first applicant's application for leave to appeal against sentence on the aiding and abetting the remaining of illegal immigrants charge, we think that his involvement in the bringing of the two women into Hong Kong was an aggravating factor. It was not a case of simply giving temporary refuge to an illegal immigrant and nothing more. The sentence is not excessive. This application is also refused.