HKSAR v. LAM MAN YIM and others

DCCC 624/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 624 OF 2012

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REASONS FOR SENTENCE

1. D1, D3, D4, D5 and D6 pleaded guilty to one charge of conspiring to live on the earnings of prostitution at Lok Cheong Building, 26-38 Fu Yan Street in Kwun Tong, contrary to section 137(1), 159A and 159C of the Crimes Ordinance, Chapter 200 (charge 1). D7 was convicted of the charge after trial. D1 also pleads guilty to one further charge of living on the earnings of prostitution at Flat F, 2/F, Tak Wah Building in the New Territories (charge 2).

Charge 1

2. In summary between January 2009 and October 2011 various rooms on different floors of Lok Cheong Building were used for prostitution.  On the 27 October 2011 the ICAC, after conducting an undercover operation raided 13 flats in Lok Cheong Building on the 2nd, 3rd, 4th and 6thFloors.  Twelve female illegal immigrants and eight females who were in breach of their conditions of stay were found in 11 of the flats.  Various exhibits used in prostitution were seized including nearly 3000 condoms. 

3. Room 1 of Flat D on the 6/F was the control room.  Monitors were mounted on the wall which displayed images captured by CCTV  cameras installed at the rear staircase near to the rear entrance of Lok Cheong Building and outside Flat H on the 2/F and Flat D on the 6/F.  A total of 15 CCTV cameras and 19 walkie-talkies were seized from the flats. 

4. Cash in the sums of HK$337,780 and RMB13,040 were found in Room 1 of Flat D on the 6/F and HK$124,940 and RMB11,326 was found in Room 2 of the same flat.

5. The roles of the defendants varied.  In summary D1 was the owner of Flats B, C and H on the 2/F, which were subdivided into three rooms each, of which 8 rooms were rented out specifically for the purpose of prostitution.  Prior to renting out Flat H the defendant had advertised in the Oriental Daily News for letting one prostitute apartments.

6. At different times in 2011 D3 rented Flat C on the 4/F and Flat B on the 6/F and D4 rented Flat C on the 6/F, which flats were used in the prostitution business.  D3 also rented the control room and together with D7 entered into discussions with D1 over the amount of the rent.  D3 and D4 also acted as pimps as did D5.  D6 was a cleaner who also touted customers who came looking for prostitutes and told them the price of prostitution services.  D7 was involved in the running of the prostitution business in Lok Cheong Building and was described by D3 as his boss. 

Charge 2

7. In October 2010 D1 became the owner of Flat F on the 2/F of Tak Wah Building.  Between March and October 2011 D1 advertised in the Oriental Daily News for promoting prostitution services at the flat.  The flat was subdivided into three rooms which were each rented to different prostitutes. 

8. There are no guideline sentences for offences of living on the earnings of prostitution although immediate imprisonment is the norm with the length of sentence depending on the particular facts; the scale of the operation and the role of the defendant.

9. I have been referred to the Secretary for Justice v Lee Cho Keung & others [2004] 4 HKC 179.  There are similarities with that case, such as the installation of surveillance cameras connected to monitors in the control room; multiple flats on different floors and that the prostitutes were illegal immigrants or visitors in breach of their conditions of stay.  I accept however, as submitted by Mr Davies, that Lee Cho Keung is on the facts a more serious case which involved girls as young as 16; the exploitation of the prostitutes before they received any payment and the provision of legal services, all of which are absent in the present case. However to be noted is that the period of the conspiracy is over 2½ years whereas the period in Lee Cho Keung appears to be only three weeks.

Sentence

D1

10. In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Fung together with the letters from his son and brother.  D1, a person of previous good character, ran his own business being the director and shareholder of two plastic manufacturing companies.  One letter from an employee of one of the companies who worked for the defendant for 15 years speaks very highly of him as an employer. 

11. I take into account that D1 was not directly involved with the prostitutes.  In asking for a suspended sentence Mr Fung refers me to HKSAR v Chan Yuk Bun CACC 187/2008 where a community service order was said to be appropriate for offering an advertising facility to the prostitutes.  The facts in Chan Yuk Bun are very different to the present case. 

12. D1 rented 8 rooms in three different flats in Lok Cheong Building and 3 rooms in one flat in Tak Wah Building, all specifically for the purpose of prostitution.  In R v John Stewart (1986) Cr App R 327 the defendant was convicted (in two trials) of three charges of living on the earnings of prostitution in relation to three different properties of which he was, through a company, the owner or lessee.  Sentences of 5 years and 3 years imprisonment were imposed.  The Court of Appeal acknowledging the defendant did not procure any of the prostitutes or subject any to coercion, corruption or violence, said that although really substantial sentences were called for, a period of five years was markedly too long, and even three years was somewhat too long.  The defendant having spent a period in custody equivalent to a term of nearly 2½ years, less remission, substituted a sentence which meant the defendant did not have to spend any further time in prison. 

13. The facts of Stewart can again be said to be more serious than the present case in that Stewart rented premises at exorbitant rents much higher than the market rent, some as much as eight times higher.  As can be seen from the papers relating to the Confiscation Order the rental the defendant would have received for the flats was $873,300.  D1 rented Flat H for prostitution because the rent he could charge was higher than the market rent (see paragraph 31 of the admitted facts).  In evidence D1 said in respect of Flat C he charged $500 more than China Mobile, who rented one of the rooms.  Although renting flats at a rent higher than the market rent there is no evidence the rents were as exorbitant as in Stewart. 

14. On the other hand the defendant was at the time of the offences an auxiliary police officer having joined the Auxiliary Police Force in January 1988.  From the letters of four other auxiliary police officers D1 performed his duties with high praise often doing work others did not want to do.  Mr Fung submits that I should treat the defendant as a person of positive good character by reason of his service to the community as an auxiliary police officer for 25 years. 

15. Acknowledging the good work of the defendant as an auxiliary police officer this is not however voluntary unpaid work.  Further as an auxiliary police officer he is tasked with upholding the law.  In HKSAR v Hui Man Tai CACC 334/2007 the Court of Appeal said: “Police officers in whom the public place trust to uphold the law, but who themselves break the very laws they are empowered and entrusted to uphold, have to be made examples in terms of deterrent sentencing so that others will not be tempted to follow along similar lines and so that public confidence will be maintained.”  I do however take into account the offences were not committed during the course of his duty as an auxiliary police officer. 

16. In all, the circumstances I am satisfied the proper starting point after trial is 2 years imprisonment on charge 1 and 12 months imprisonment on charge 2.  Giving the defendant full credit for his pleas of guilty reduces the sentences to 1 year and 4 months imprisonment and 8 months imprisonment respectively.

17. Charge 2 is a separate offence to charge 1.  Looking at totality of sentence to be served I am satisfied that 4 months is to be served consecutively and 4 months concurrently making a total sentence to be served of 20 months imprisonment.  I am satisfied a total sentence of 20 months imprisonment properly reflects the criminal culpability of D1 on both charges. There are no exceptional circumstances to suspend the sentences.

Assistance to authorities

18. Prior to trial D1 gave a non-prejudicial statement to the ICAC and offered to give evidence for the prosecution.  This resulted in D6 pleading guilty to the charge.  D1 gave evidence at trial against D7.  Mr Fung relying on the decision in HKSAR v Z [2007] 1 HKLRD 977 submits a discount of 50% should be given to the defendant.  I agree and further reduce the total sentence to be served by the defendant to 15 months imprisonment.

19. A medical note from Dr Chan details the defendant’s history of hepatitis B and an operation to remove the gall bladder.  Whilst I sympathise with the defendant’s health condition I am satisfied the prison authorities will closely monitor his health.  Should there be any deterioration in his health D1 can seek clemency from the Executive.  I am satisfied there are no grounds to further reduce the sentence.

20. D1 is convicted and sentenced to 12 months imprisonment on charge 1 and 6 months imprisonment on charge 2, 3 months consecutive and 3 months concurrent to charge 1 making a total sentence to be served by D1 of 15 months imprisonment.

Confiscation order

21. Application is made by the prosecution for a Confiscation Order.  I am satisfied the defendant has benefited from the offences.  The defendant has confirmed all the papers in support of the application have been explained to him and he agrees with the draft order submitted to court.  I make an order in terms of the draft order that the defendant do pay the sum of HK$873,300 on or before the 11 April 2013.  Should the defendant fail to pay then he shall serve a term of 9 months imprisonment in default consecutive to the sentence imposed on charges 1 & 2.

D3-D6

22. In passing sentence I have taken into account everything said on behalf of the defendants by Mr Davies and Mr Lau together with the letters from D6’s husband and daughter and details as to the health of the defendants.

23. In Lee Cho Keung the Court of Appeal drew no distinction between those described as keepers and those as cashiers.  I propose also to draw no distinction between D3, D4, D5 and D6 whose roles were very similar although arguably D3 played a greater role than D4, D5 or D6.  

24. Mr Lau submits D6 was less involved as she needed to attend medical appointments and was therefore never seen by the ICAC during their undercover operation in 2011.  The admitted facts show that all defendants were involved in the conspiracy for well over one year.  Even if D6 went to the various flats less than other defendants she was involved for a long period of time and still involved at the time of arrest having been found in one of the flats.  There are no grounds to distinguish her role from that of D3, D4 and D5.

25. D5 has one similar conviction for living on the earnings of prostitution in 1999 and D3 was convicted of a vice offence after release on bail for the present offence. Similarly in Lee Cho Keung D5 had one similar and D2 committed a similar offence when on bail.  The Court of Appeal did not increase their sentence by reason of these convictions.  Likewise I do not increase the sentence of D3 and D5.

26. The defendants all being actively involved over most of the conspiracy would therefore have been aware of the scale of the operation over four different floors, and that prostitutes came from the Mainland.  The finding of illegal immigrants or those in breach of their conditions of stay has been held to be an aggravating feature of sentence. 

27. Starting points of 12 months or more have been said to be appropriate in cases concerning vice establishments brought in the Magistracy (see for example HKSAR v Lin Pak Him HCMA 200/2012 (English translation in the Criminal Appeals Bulletin August 2012; HKSAR v Lai Chi Fai, Davidson HCMA 91/2010 and HKSAR v Au Kam Yui HCMA 1111/2006).  None of these cases are however on the scale of the present case.

28. After careful consideration and looking at the sentences imposed in Lee Cho Keung for those who played the roles of keepers and cashiers, I am satisfied the proper starting point after trial for D3, D4, D5 and D6 is 18 months imprisonment.  Giving full credit for the pleas of guilty D3, D4, D5 and D6 are convicted and sentenced to 12 months imprisonment.

29. Again whilst I sympathise with the health condition of the defendants I am satisfied there are no grounds to further reduce the sentences.  Should there be any deterioration in their health they can seek clemency from the Executive.

D7

30. In passing sentence I have taken into account everything said on behalf of the defendant by Mr Davies together with the letters from his wife, pastor and Dr Chung detailing heart disease diagnosed in May 2011.  

31. D7 was involved in the running of the prostitution business in Lok Cheong Building.  As he told D1 he went to the premises every day for inspection and he could watch what was going on from the outside.  This clearly referred to the control room of which keys were found in his residence.  Also at one stage D7 was concerned about the business and wondered whether this was as a result of the poor quality of his staff.  D3 referred to D7 as his boss.  I am satisfied the proper sentence after trial is 3 years imprisonment.

32. Again whilst I sympathise with the health condition of the defendant I am satisfied there are no grounds to further reduce his sentence.  Should there be any deterioration in his health he too can seek clemency from the Executive.

Summary

33. The defendants are convicted and sentenced as follows:

D1

CHARGE 1 – 12 MONTHS IMPRISONMENT;

CHARGE 2 – 6 MONTHS IMPRISONMENT,

3MONTHS CONSECUTIVE AND 3 MONTHS CONCURRENT TO CHARGE 1;

TOTAL SENTENCE TO BE SERVED 15 MONTHS IMPRISONMENT.

D3 – D6

12 MONTHS IMPRISONMENT.

D7

3 YEARS IMPRISONMENT.