HKSAR v. MORALES MARIA VICTORIA

DCCC 712/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 712 OF 2012

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REASONS FOR SENTENCE

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1.  The defendant was charged with four offences of trafficking in women contrary to s. 129(1) of the Crimes Ordinance Cap 200 (Counts 1 to 4) and two charges of living off the immoral earnings of the women referred to in charges 3 and 4 contrary to s. 137(1) of the Crimes Ordinance. The defendant pleaded guilty to charges 3 to 6 and it was ordered that the first two charges should remain on the court file not to be proceeded with without the leave of the court.

Arrest and Search

2.  On 22 April 2012, a police party raided the Defendant’s premises located at 2^nd Floor, 70 Lok Shan Road, To Kwa Wan, Kowloon and arrested the Defendant  for the offence of “Trafficking in Persons to Hong Kong”.

3.  Upon search of the Defendant’s premises the following items were seized :-

(i) Boarding passes of Columbian females Maryury Gonzalez Escobar (Female 1) and Zuleta Orrego Mayra Alejandra (Female 2);

(ii) Electronic air-tickets of Female 1 & 2;

(iii) Itinerary receipts of Female 1 & 2; and

(iv) Some notebooks.

4.  The Defendant was subsequently interviewed by officers in the presence of a Spanish Interpreter.

5.  The defendant told the police that :

(a) Upon request of Female 2’s aunt, the Defendant arranged Female 2 to come from Columbia to Hong Kong, approximately two months prior to the date of the interview;

(b) The defendant was aware that Female 2 came to Hong Kong to work as a prostitute;

(c) Regarding the process of arrangements, the Defendant admitted the following:-

(i) The Defendant first contacted Female 2, who was in Columbia, by email;

(ii) The Defendant received a photograph of Female 2;

(iii) The Defendant asked Female 2 to provide a consent letter from her parents to prove that she came voluntarily to work in Hong Kong;

(iv) The Defendant transferred money to Columbia for Female 2 to obtain a medical certificate, a passport and an air-ticket;

(v) The Defendant asked her son to accompany Female 2 to Hong Kong;

(vi) The Defendant spent about US$6,000 to US$7,000 to arrange for Female 2 to come to Hong Kong;

(vii) After Female 2 arrived in Hong Kong, the Defendant arranged for her to live in Chung King Mansion;

(viii) The Defendant assisted Female 2 to communicate with customers over the phone because Female 2 could not speak English;

(ix) The Defendant would advise Female 2 how much she should charge customers;

(x) The girls would give part of their earnings to the Defendant as repayment and profit;

(xi) Normally, the Defendant could get HK$100,000 in six to eight months per girl;

(xii) The Defendant had arranged prostitutes to come to Hong Kong for 1½ years;

(xiii) In total, the Defendant had arranged four girls, including Female 1 and Female 2 to come to Hong Kong ;

(xiv) Female 1 and Female 2 arrived in Hong Kong together;

(xv) The Defendant would keep the air-tickets of the girls and a record of their income.

6.  In a second interview the defendant provideded details of Female 1 and Female 2. She said that :-

(i) Female 1 and Female 2 were from Columbia;

(ii) Female 1 and Female 2 worked as prostitutes in Columbia;

(iii) The Defendant used the name “Karen” to contact the girls;

(iv) The Defendant lent US$6,000 to each girl so that each girl could have money to arrange a passport, medical certificates and air-tickets;

(v) The electronic air-tickets which were seized from the Defendant’s home were shown to her and the Defendant admitted that they were air-tickets for Female 1 and 2.

7.  In a third interview the Defendant admitted the following:-

(i) The Defendant confirmed that a notebook seized from her premises contained a record of the money received by the Defendant from Female 1;

(ii) The Defendant further confirmed that another notebook contained a record of the money that the Defendant had received from Female 2;

(iii) The Defendant had already collected about US$3,000 from Female 1;

(iv) The Defendant had already collected about US$2,000 from Female 2;

(v) The girls were not victims;

(vi) The girls had urged the Defendant to provide assistance to them.

FURTHER ENQUIRY

8.  Enquiry with a staff member of the airline company revealed that Female 1 and Female 2 took the same flight from Columbia to Hong Kong.  They arrived in Hong Kong at around 12:25 hours on 15 March 2012 via the same immigration counter staffed by PW7.

Mitigation

Clear Record

9.  The defendant is aged 52. She is a grandmother. Her daughter lives in Hong Kong and has 2 children aged 5 and 18 months. Her son is 30 and works in Columbia. I am told that she enjoys a very close relationship with her grandchildren.

10.  The defendant has had  a series of  jobs in Hong Kong. She was divorced from her husband in 1999 and has thereafter single-handedly raised her family.

11.  She has been running a trading company for 8 years and earns approximately HKD6000 per month.

12.  The defendant is not in good health. She had a hip replacement last year and whilst in custody was obliged to use a squat toilet. She slipped and the cable of her hip replacement was damaged. She required immediate hospitalization and is still undergoing treatment. She is also undergoing tests for possible breast cancer.

13.  The defendant says that she only became involved in these offences because she was requested by an aunt in Columbia to take care of the girls.

14.  The defendant has pleaded guilty to the offence of living on immoral earnings in that she lent money to the prostitutes who repaid her with interest. At the time of her arrest, she only received a few thousand from each girl, not enough to cover her expenses.

15.  There was not exploitation of the prostitutes in the sense that there were not misled as to what they would do in Hong Kong, the girls were already working as prostitutes on Columbia nor were the girls kept in confinement. The prostitutes were not smuggled into Hong Kong nor were they  young girls.

16.  The girls found customers themselves although they were assisted by the defendant. This was not part of an organized crime or triad syndicate.

17.  The defendant co-operated with the police. Without her cooperation and admissions there would have been no case against her. None of the girls complained.

Sentencing Considerations

Trafficking in Women ( s.129)

18.  The maximum penalty for this offence is 10 years imprisonment.

19.  No tariffs for sentencing exist for such offences nor have I been presented with any previous similar cases for guidance.

20.  Clearly, such offences are serious. The defendant in this case was involved in financing and making arrangements for prostitutes from Columbia to travel to Hong Kong to work as prostitutes here. The women trafficked would clearly be in breach of their conditions of stay, they would not only be working illegally they would be working as prostitutes supplying some of their income to the defendant. The defendant gave them assistance to carry out their work as prostitutes.

21.  This is not a case of exploitation in the sense that the women were brought to Hong Kong not knowing they would work as prostitutes nor was they kept in a confined environment to service customers.

22.  None of the prostitutes were detained in Hong Kong to give evidence. The only evidence against the defendant came from admissions made by her whilst being interviewed by the police.

23.  Although the offences admitted by the defendant are serious, in my view they fall at the lower end of the spectrum of gravity for such offences and in all the circumstances I take the  view that  a starting point of  imprisonment for  21 months  is appropriate. 

24.  I was informed in mitigation that prior to her arrest the defendant had undergone a hip replacement. Whilst in custody and whilst being obliged to make unaccustomed use of a squat toilet, she slipped and aggravated her condition and since then has been obliged to use a wheelchair. In view of her medical condition and in view of the circumstances in which her current condition came about I propose to reduce the starting point by 3 months.

25.  I will deal with the questions of discount for the late guilty pleas and totality later.

Living Off Immoral Earnings

26.  The maximum sentence for this offence is 10 years imprisonment. Again, no tariff exists but sentences of imprisonment are regularly imposed. There was no element of exploitation in this case. The prostitutes were not young girls and they were aware of  the work they would be performing in Hong Kong.

27.  The defendant paid for the prostitutes to come to Hong Kong and was to be reimbursed for those expenses and they prostitutes were expected to make further payments to the defendant from their earnings. There was no set rate and there was no question of the prostitutes having to hand over all their earnings until they had serviced a certain number of customers. Again in my view, in the particular circumstances of this case, the criminality is at the lower end of the spectrum.

28.  In my view a sentence of 12 months would  be appropriate as a starting point.

29.  I have considered the question of totality and decided that the sentences should run concurrently as the offences are clearly connected.

30.  The defendant has pleaded guilty to the charges albeit the pleas were entered after the trial had started. I note that where a defendant pleads guilty following an unsuccessful voir dire a discount should usually be in the order of 20%: HKSAR v. Leung Cho Yi [2009] HKCU 625. In this case however the defendant entered guilty pleas not at the conclusion of an unsuccessful voir dire but during the voir dire itself which was being conducted as a preliminary trial issue rather than by way of alternative procedure. Only one witness had been called by the prosecution and the pleas were entered before any cross-examination of that witness. In those circumstances, I take the view that a discount of 25% is appropriate.

31.  In respect of charges 3 and 4, I sentence the defendant to imprisonment for 13 months and two weeks and for charges 5 and 6 to sentences of  9 months imprisonment, all sentences to run concurrently. The defendant will therefore go to prison for 13 months and 2 weeks.