HKSAR v. NG TSZ FUNG

HCMA800/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.800 OF 1998

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J U D G M E N T

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1. The Appellant pleaded guilty to the charge of managing a vice establishment before Mr Paul Kelly in South Kowloon Magistracy. The plea was on 14th July 1998, and she was sentenced on the same day by the learned Magistrate to six months' imprisonment and a fine of $20,000.

2. The particulars of the charge are that on 15th May 1998, at premises in Mongkok, the Appellant managed the said premises as a vice establishment. She now appeals against the sentence.

3. The facts of the case were that on the day in question, two police officers disguised themselves as customers and rang the door bell of the premises which, I am told, were private residential premises. The door was answered by the Appellant who let the police officers in. Inside the premises, eight women were found and two of those women agreed to provide sexual services to the two undercover police officers. A raid by a police party shortly thereafter brought an end to the activities in the premises.

4. It has been submitted by Mr Boyton on behalf of the Appellant that in this particular case there was no evidence of the brothel operation being an organised one. Also there was no evidence of any forcible detention of the women involved or any of those women being underage girls.

5. Miss Ko, for the prosecution, points out that on the premises there were eight women so it cannot be said that there was not some degree of organisation behind this operation.

6. The Appellant pleaded guilty to the charge and was a person with a clear record. It was said in mitigation on her behalf that her husband left her five years ago and she was left alone to take care of her daughter, who is studying in Form Five, also that she still has a mother living in Shenzhen, China, who appears to have some mental problems. It was also pointed out to the learned Magistrate that the Appellant was not the operator of that brothel but was either looking after it for a friend, or was employed in that capacity. It was also mentioned that up to the date of arrest, she had worked on those premises for about one month. Those last two facts were not disputed by the prosecution at the hearing before the learned Magistrate. The learned Magistrate adopted the starting point of nine months, giving her credit for her plea and good character and reduced it to six months' imprisonment.

7. In his Reasons for Sentence, the learned Magistrate mentioned the enormous profit potential which can be made from these sorts of businesses. That was probably the reason why the learned Magistrate imposed, in addition to the term of imprisonment, the fine of $20,000. Mr Boyton makes the point that there is no evidence that the Appellant shared the profits of the establishment, and therefore the fine is wrong in principle.

8. I do not think that it would be unrealistic to assume that the Appellant was managing this business for free. It is incontrovertible that there can be a large profit potential arising from these businesses. I do not intend to do anything about the fine imposed by the Magistrate.

9. Criticism is also made of the learned Magistrate's other reason which he mentioned in his Reasons for Sentence, that these establishments are often controlled ultimately by organised crime. I think that is taking a realistic view of life in Hong Kong, but that does not appear to have been the reason why the learned Magistrate imposed the sentence that he did. He appeared to have relied upon the case ofR. v. Kwan Wah-sang M.A. 1324/88 and he said, quoting that case, that a sentence of three to six months was appropriate. In that case, in fact, what Yang, C.J. said was this :

"A number of authorities have been cited to show that the six months imposed on each of the two charges is too high. It will not be necessary for me to go into these cases in detail. Suffice it to refer to a case of the Court of Appeal decided recently, namely The Queen and Tam Yiu-kwong (1988) No.323. There it was said that the range of sentence imposed for this type of offences is very wide indeed. It ranges from probation through fines to suspended sentence to immediate custodial sentence, and for custodial sentences the range appears to be three to eighteen months, the most common being three and six months imprisonment."

10. In that case, the facts are not entirely dissimilar from the facts in the instant appeal. The facts in Kwan Wah-sang are that there was a police raid at a vice establishment in Wanchai and the appellant was discovered showing girls to customers and taking customers to places where sexual intercourse could take place, and he was paid $200 a day and had been employed there for two weeks. Yang, C.J. said that there was no evidence that it was a large establishment or that very young girls were involved. He said it was by no means the worst case of its type; the appellant there had been employed for a very short period of time. Yang, C.J. said :

"It would appear that the Magistrate in giving credit to all the mitigating circumstances of the case and imposing a sentence of six months on each charge, must have adopted as a starting point a sentence somewhere near nine months. In my view that starting point is too high. It seems to me appropriate that if it had been a single offence, a starting point of about six months would have been appropriate."

11. In Kwan Wah-sang, there was a second charge of living on the earnings of prostitution for which the appellant was also sentenced to six months concurrent. Yang, C.J. said :

"It seems to me appropriate that if it had been a single offence, a starting point of about six months would have been appropriate. Taking into consideration that there were two offences, I think the totality of four months would have been appropriate."

Yang, C.J. therefore reduced the sentence from six months to four months on each charge, the sentences to be served concurrently.

12. In my judgment, the facts of Kwan Wah-sang are quite similar to the facts in the instant appeal. I intend to follow what was done in Kwan Wah-sang. It follows, therefore, that the starting point of nine months as adopted by the learned Magistrate was too high. In my judgment, the starting point should have been six months. Giving a discount for the plea of guilty and the other mitigating factors, the appropriate sentence is one of four months. So, to that extent, the appeal is allowed. The fine will remain as it is.