HKSAR v. Hemwichit Thanatcha and Others

[English Translation – 英譯本]

DCCC 730/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL JURDISDICTION

CRIMINAL CASE NO 730 OF 2015

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REASONS FOR SENTENCE

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Offences

1.The four defendants appeared in this court on 23 February 2016.

2.D1 and D2 pleaded guilty to four charges of managing a vice establishment, contrary to section 139(1)(b) of the Crimes Ordinance, Cap 200 Laws of Hong Kong (“Charges 1 to 4”). D1 further pleaded guilty to two charges of tenant permitting premises to be kept as a vice establishment, contrary to section 144(1)(a) of the Crimes Ordinance, Cap 200 Laws of Hong Kong (“Charges 9 and 17”).  Finally, she pleaded guilty to one more charge, breach of condition of stay, contrary to section 41 of the Immigration Ordinance, Cap 115 Laws of Hong Kong (“Charge 13”).  As for D2, in addition to Charges 1 to 4, he pleaded guilty to two charges of tenant permitting premises to be kept as a vice establishment, contrary to section 144(1)(a) of the Crimes Ordinance, Cap 200 Laws of Hong Kong (“Charges 10 and 12”).

3.D3 pleaded guilty to one charge of living on earnings of prostitution of others, contrary to section 137(1) of the Crimes Ordinance, Cap 200 Laws of Hong Kong (“Charge 14”), and one charge of tenant permitting premises to be kept as a vice establishment, contrary to section 144(1)(a) of the Crimes Ordinance, Cap 200 Laws of Hong Kong (“Charge 15”).  Lastly, D4 pleaded guilty to one charge of living on earnings of prostitution of others, contrary to section 137(1) of the Crimes Ordinance, Cap 200 Laws of Hong Kong (“Charge 16”).

4.The prosecution offered no evidence in relation to Charge 11 and the court found D2 not guilty of that charge, which was dismissed accordingly.  The prosecution applied to leave Charges 5 to 8 on file.  The legal representatives of D1 and D2 raised no objection and the application was granted.

Facts

5.From 7 to 8 May 2015, the police conducted an undercover operation in Yaumatei against vice activities.  Five premises or locations were involved:

1. Flat 8, 1^st floor, Agatha House, 21 Ning Po Street, Yaumetei “location 1” (Charges 1 and 9);

2. Flat 6, 3^rd floor of the same building “location 2” (Charges 2 and 10);

3. Flat 8, 3^rd floor of the same building “location 3” (Charges 3 and 17);

4. Flat 3, 6^th floor of the same building “location 4” (Charges 4 and 12); and

5. Rooms B, C and D, 2^nd floor, 63 Pilkem Street “location 5” (Charge 15);

In the evening of 8 May 2015, several policemen, disguised as pedestrians, went to Ning Po Street and the neighbouring area to carry out the undercover operation. In the course of the operation, they were subjected to solicitation from several Thai prostitutes, who took them to locations 1, 2 and 3 respectively, intending to provide sexual services to them and to have sexual transactions with them.

6.At 8:15 pm on 8 May 2015, two policemen, who were at the junction of Shanghai Street and Ning Po Street, saw that D3 and D4 arranged for six Thai girls to stand on Ning Po Street near the junction of Ning Po Street and Shanghai Street.  At that time, D3 and D4 kept looking around, while the Thai girls solicited on the street by wavingand smiling at the men who passed by.  One to two minutes’ later, uniformed policemen, who were on patrol, appeared on Ning Po Street, near the junction of Ning Po Street and Shanghai Street.  D3 and D4 instructed the girls to go to Temple Street, and the girls walked away hurriedly towards Temple Street. After the policemen had left, D3 instructed the girls to return to where they had been and they resumed soliciting.  (Charges 14 and 16)

7.At 8:30 pm of the same evening, an undercover detective saw three Thai girls on Ning Po Street near Shanghai Street.  One of the girls waved at the detective and said in English, “Two hundred fifty”.  After that, the girl took the detective to location 2 and intended to provide sexual services to him, but the detective stopped her and put her under control.  At this moment, a group of policemen came to the scene for investigation.  They found another Thai girl in another room in the flat.  In the course of their investigation, the girl admitted to the policemen that she came to Hong Kong for prostitution.  In the end, the two Thai girls were arrested for breach of condition of stay.  (Charge 2)

8.At about the same time, another undercover detective saw a Thai girl on Ning Po Street, who said in English to him, “Two hundred fifty, make love”. Then she took the detective to room A of location 3, intending to provide sexual services to him, but was stopped and put under control by him.  In addition, another undercover detective saw another Thai girl in the vicinity of Ning Po Street, who similarly said in English to the detective, “Two hundred fifty”, and took him to room C of location 3, intending to provide sexual services to him, but the detective revealed his identity and put her under control.  Around 8:45 pm, a group of policemen arrived at location 3.  They found in room B a man, who was surnamed Lam, and the 3^rd Thai girl in the flat.  The man admitted that he was there whoring, and said that he was taken by the girl to room B for sexual intercourse.  The policemen arrested the three Thai girls, who were in location 3, for breach of condition of stay and soliciting for an immoral purpose.  (Charge 3)

9.Since the undercover operation on Ning Po Street bore fruit, around 8:40 pm a group of policemen went to location 4 to investigate. They found D1, D2 and a Thai girl in the flat.  D1 admitted that she and D2 rented locations 1 to 3 for the Thai girls to engage in prostitution there. Thereupon, the policemen arrested her for keeping a vice establishment. Under caution she said, “Sir, it’s me and Ah Dee who are responsible for running this vice establishment.  Please don’t arrest the Thai girls”.  The policemenfound that two tablet computers and two televisions placed in the sitting room of location 4 could be used to monitor, through CCTV cameras, what was going on in locations 1, 2, 3 and 5.  (Charges 1 to 4)

10.The policemen seized a safe in a bedroom in location 4.  The safe contained D1’s personal belongings, some identification documents, some valuable items and cash $158,160, of which $37,160 (in the form of banknotes) had small holes on them caused by stapling.  In the sitting room of location 4 the following items were seized: I.A tenancy agreement about the renting of location 5 by D3.(Charge 15) II. 13 electronic air tickets (the names on some of them were the same as the names of the Thai prostitutes involved in this case).  III. Bills, receipts and other commercial documents about the water charge, electricity charge, gas charge, furniture expenses, fitting up expenses and wireless monitoring system expenses related to locations 1 to 5.  IV. Tenancy agreements about the renting of locations 1 and 3 by D1.  V. Tenancy agreements about the renting of locations 2 and 4 by D2.  VI. Business records or pieces of paper torn from business record notebooks seized in location 1, 2 and 5 (on some of them D2’s fingerprints were found).  VII.Seven tablet computers, televisions and monitors etc. Some of them could be used to monitor, through CCTV, locations 1, 2, 3 and 5.  (Charges 1 to 4)

11.At about 9 pm, some policemen arrived at location 1 for investigation.  A Thai girl opened the door.  Later, the police learned that the girl came to Hong Kong as a visitor on 28 April 2015 and could stay until 28 May, but she was not allowed to work during her stay.  The Thai girl admitted to the police that her purpose of coming to Hong Kong was to engage in prostitution, so she was arrested for breach of condition of stay.  (Charge 1)

12.In the small hours of 9 May 2015, a group of policemen went to location 5 to investigate.  They forced opened the doors of rooms A to E in the flat.  A Thai girl was found in each of rooms B, C and D.  They all admitted that they came to Hong Kong as a visitor to engage in prostitution.  (Charge 15)

13.In this operation, the policemen seized in locations 1, 2, 3 and 5 many condoms, lubricating oil, staplers and record books.  When conducting investigation in location 1, the policemen found in a drawer five piles of banknotes.  The banknotes were stapled together.  Each pile consisted of HK$250 and the total amount was $1,250.  In location 2, the policemen similarly found in a drawer a pile of banknotes which were stapled together, the total sum of which was $250.  In location 3, the policemen also found seven piles of stapled-together-banknotes, of which six piles consisted of $250 each; one pile was $350, and there was one $50 banknote, making a total of $1,850; and in the drawer in which the banknotes were kept, D2’s fingerprints were found.

14.Police investigation disclosed that D1 is not a permanent resident of Hong Kong.  She came here on 1 April 2013 and was permitted to stay until 27 April, but she did not leave before her stay expired, and so she has been in breach of condition of stay since28 April 2013.  (Charge 13)

15.As the undercover operation was successful, the policemen intercepted D3 and questioned him.  D3 admitted that he was positioned on Ning Po Street near the junction of Ning Po Street and Shanghai Street, acting as a lookout.  When policemen were approaching, he would signal the Thai prostitutes to go away; and when the policemen left, he would signal them to come back to continue soliciting.  The policemen arrested D3 for assisting in the keeping of a vice establishment.  He said under caution, “I was just doing my work.” Subsequently, when he was being questioned under caution, he said that he worked as a lookout only because he had to provide for his wife and daughter. He said that D1 was called “Ah May”, that she was the boss and that D2 was her “husband”.  According to him, his work was that everyday at 6 pm he was to wake up the Thai girls in locations 1 to 3 and took them to Ning Po Street and the neighboring area to look for customers.  When patrolling policemen came, he would tell the girls to go away.  When the policemen left, he would tell them to resume working.  He admitted that he had already worked for over one year.  He knocked off at 5 am everyday.  D3 added that he would buy food for the Thai girls and help them to carry their luggage.  He knew that sexual services were provided in locations 1 to 3.  About 10 Thai girls engaged in prostitution.  Each time each customer was charged $250 as the price for the sexual services.  Everyday there were 30 to 80 customers.  D3’s daily wage was $800.  He knew that D4 was also employed by D1.  Location 5 was rented by him on D1’s instruction.  (Charge 14)

16.Another policeman intercepted D4 and questioned him.  Likewise, D4 admitted that he was a lookout.  That means when patrolling policemen appeared, he would warn the Thai prostitutes that they should leave.  When the policemen left, they would come back to the same place to solicit.  D4 said that his daily wage was $500.  He was similarly arrested for assisting in the keeping of a vice establishment.  Under caution he said, “I was unemployed.  I just wanted to earn my living.”  Subsequently, when he was being questioned under caution, he said he could not find any work, so he kept watch for the Thai girls on Ning Po Street near Shanghai Street. That means when policemen were approaching, he would signal the Thai girls to go away, to stop soliciting for the time being; and at the same time he would notify D1.  His working hours were 6 pm to 2 am.  He knew that the Thai girls were prostitutes, who took customers from the street to Agatha House for sexual transactions.  He knew that the Thai girls would record the transactions on pieces of paper, and everyday D1 would collect the records and cash generated from the sexual transactions.  D4’s daily wage was $500.  (Charge 16)

Mitigation submissions

D1

17.D1 was born in Thailand in January 1971.  She has two criminal convictions in Hong Kong.  Both are the offence of breach of condition of stay, for which she was sentenced in October 1996 and August 1997 to two months’ and three months’ imprisonment respectively.

18.By way of mitigation, Mr Lee, counsel for D1, submitted that the defendant’s present husband lived in Hong Kong, who married D1 in 2008, but that D1 did not complete all the procedures for applying to be a permanent resident of Hong Kong, and that was why she committed the offence referred to in Charge 13, namely breach of condition of stay.  Mr Lee said D1 was 44 years old.  She did not receive any formal education and she went to Singapore at the age of 20 to make a living by being a prostitute.

19.After D1 came to Hong Kong in 2008, she married a Hong Kong resident who was born in Nepal and became a housewife. However, her husband was unemployed, so she resumed her old job and earned her living by being a prostitute from 2008 to 2013.  In 2013, her husband even disappeared, but she had to take care of her elderly mother, who was in Thailand, and her young nephew and young niece; she therefore operated the vice establishment involved in this case.

20.Mr Lee said in mitigation that D1 was not the head of the vice establishment.  The capital for setting up the establishment all came from the head, who also provided the rent for renting the premises concerned (Charges 9 and 17) and paid the expenses for buying things relating to prostitution.  D1 also worked as a Thai interpreter to assist Thai girls to engage in prostitution in Hong Kong.  She had a monthly wage of $12,000 and was provided with a place to live in.  She lived a frugal life, so she saved up a sum of money.

21.Mr Lee agreed that $37,160, which was in the form of banknotes and which had stapling holes on them, among the cash found in the safe was undeniably proceeds from prostitution, but he claimed that the rest of the cash was the personal savings of D1.  Mr Lee made it clear that on this issue he would rely only on his submission and would not call D1 to give evidence.

22.Mr Lee submitted that the most important factor that should be taken into consideration in the present case was the scale of operation of the establishment in question.  Regarding the number of the prostitutes, Mr Lee pointed out that only a total of seven prostitutes were connected with locations 1 to 4, and that location 5 was not included in the charges which D1 faced (in that location three other prostitutes were found).  Mr Lee submitted that money found in locations 1 to 3 was only about $3,000.  According to Mr Lee (the prosecution did not object), all the prostitutes were around the age of 30, and even the youngest one was a 20 years old adult.  There is no evidence that the prostitutes had been threatened, forced to entertain any customers or subjected to severe exploitation.  On the contrary,the evidence shows that the prostitutes could freely move about on the street to look for customers.

23.Mr Lee submitted that the four defendants were all employees: two were responsible for indoor work and two for outdoor work.  No advertising materials were found in the establishment.  The mode of operation was rather primitive, not sophisticated, and there is no sign which indicates that the operator had done anything to make it difficult to investigate and crack this case.

24.Mr Lee relied on three cases: Secretary for Justice v Lee Cho Keung & Ors[1]; The Queen v Lau Kin Ming & Another[2]; and HKSAR v Chan Chung Por[3]. He asked the court to give D1 due credit for her pleas of guilty, and to sentence her in accordance with the principle of totality.

D2

25.D2 was born in Thailand in January 1976.  He is now 40 years old, married, without any children.  In 2010 in Thailand he married a Thai woman who had a Hong Kong identity card.  He said he was a friend of D1.  Starting from 2012, D2 performed in a Thai restaurant as a singer and earned a monthly salary of around $10,000.  He remitted about $2,500 to Thailand every month to support his mother.  Every Tuesday, Friday and Saturday, after he finished his singing job in the Thai restaurant, he went to work at location 4.  His duties included watching the CCTV and monitoring what was going on in locations 1 to 3 and 5, in order to ensure the personal safety of the prostitutes.

26.Mr Suen, counsel for D2, adopted the relevant parts of the submissions made by counsel for D1, and he heavily relied on Secretary for Justice v Lee Cho Keung & Ors[4].  Mr Suen pointed out that the vice establishment in the present case did not operate in an open and overt way; instead, its operation was carried out covertly, and D3 and D4 were needed to act as lookouts.  Mr Suen emphasized that in the present case there was no exploitation and no one was forced to prostitute herself. All the prostitutes were adults and they charged only $250 for half an hour’s services.  Mr Suen contended that judging from the above circumstances, the operation of the vice establishment was not sophisticated, that it only belonged to the rather primitive category of “soliciting by streetwalkers”, and that it was not run as an enterprise as the one in Secretary for Justice v Lee Cho Keung & Ors[5] (see HKSAR v Lam Sze Kei & Another[6]).  Mr Suen also relied on HKSAR v Au Kam Yui[7], in particular the comments in that case that there were no tariffs for the offence of keeping a vice establishment, that the sentence of each particular case should be passed according to the facts of that case, and that in five relevant cases decided between 2001 and 2006, 12 months was used as the starting point.  Mr Suen stressed that D2 had no previous convictions and he urged me to deal with him leniently.

D3 and D4

27.D3 was born on the Mainland in May 1956. He has 40 previous convictions, involving 57 charges, but they were different from the charges he faces in this case.

28.D4 was born in Hong Kong in March 1962.  He has 12 previous convictions, involving 15 charges, but none of them is the same as or related to the charges he faces in this case.

29.Mr Fung, counsel for D3 and D4, submitted that the strongest mitigating factor of D3 and D4 was that they frankly pleaded guilty.  These two defendants adopted the relevant and applicable parts of the mitigation submissions made by counsel for D1 and counsel for D2.

30.Mr Fung stressed that D3 and D4 were only responsible for doing legwork and the roles they played were like that of a sapper.  They did not perform any actual management function.  Neither of them was able to communicate with the Thai girls and had to rely on signals and gestures.  Mr Fung submitted that the work which D3 and D4 were responsible for had little to do with the mode and scale of occupation of the vice establishment.  Based on the absence of evidence that the Thai prostitutes had been subjected to exploitation, Mr Fung asked the court to consider that there was no person victimized in this case, and to treat D3 and D4 as leniently as possible.

Reasons for sentence

31.There is no sentencing guideline for the offence of keeping a vice establishment.  The scale of operation of the vice establishment in question is the key consideration in sentencing in the present case.  In this respect, I consider that the establishment comprised an operation centre (location 4) and four units (locations 1, 2, 3 and 5), and could be used by about 10 prostitutes.  The reasons are set out below.

32.First of all, activities in the four units were monitored by people in the operation centre through CCTV.  The photographs produced by the prosecution show that one feature of the mode of operation of the establishment was that it was expressly provided that: I. Working hours were 6 pm to 5 am.  II. Under no circumstances was going outside allowed. III. No customer was allowed to be brought to the premises outside working hours.  IV Time allowed for each job was 30 minutes; no working beyond this time limit was allowed.  V. The boss had to be notified before going out.  VI. Under no circumstances was going outside after work allowed.  “Anyone who breaks any of these rules shall pay a forfeit of $1,000”.  I consider that the CCTV monitoring, apart from ensuring that the prostitutes would be free from disturbance in the establishment, could also prevent the prostitutes from leaving the units (including location 5) or bringing customers to the establishment outside working hours (also included location 5) in violation of the rules.  More importantly, the CCTV monitoring could show that the time spent on prostitution each time did not exceed 30 minutes and could show how many customers each prostitute brought to the establishment, so as to ensure the accuracy of the records made by the prostitutes.  In this case, all the prostitutes arrested in the four locations came from Thailand to Hong Kong for engaging in prostitution.  13 electronic air tickets were seized in the operation centre; the names on some of them were the same as the names of the prostitutes.  Moreover, bills, receipts and other commercial documents about water charge, electricity charge, gas charge, furniture expenses, fitting up expenses and wireless monitoring system expenses in connection with the four units were seized in the operation centre.  Lastly, the tenancy agreement in respect of location 5 was also seized in the operation centre.

33.In my view, under the above-mentioned mode of operation, the personal freedom of the prostitutes was subjected to considerable restriction.  Furthermore, in the operation centre cash of over $158,000 was seized.  The tenancy agreements produced by the prosecution show that the total amount of rent for the five locations was $58,500 per month.  The joint operation of the five locations began on 10 April 2015.  Among these locations, the first one whose tenancy agreement had to be renewed was location 5, and it would have happened on 19 November 2015.  This shows that the intention of the operator was to go on operating the establishment from May 2015 to November 2015 in the same scale, involving an expenditure of nearly $60,000 per month as rent.  (I noticed that each prostitute charged $250 each time for the sexual services she provided.)  This item of regular and fundamental expenditure can by no means be said to be insignificant.

34.Since about $60,000 per month in total was required for paying the rent for the locations involved in this case, judging from all the circumstances, I find beyond reasonable doubt that of the $158,160, apart from the $31,760[sic], which were proceeds from prostitution and on which there are holes caused by staplers, all the rest of this amount of cash was money for the operating cost of the establishment.  In this connection, the prosecution, at the request of the court, provided information about the things, other than the cash, contained in the safe found in this case.  The court was informed that those things included a significant amount of money in foreign currencies and other valuables, for example, watches of prestigious brands.  The prosecution did not dispute that those things belonged to D1, and Mr Lee said in his submission that a finance supplier or boss, who remained behind the scenes, was involved in the operation of the establishment.

35.I agree with the defence’s submission that the vice establishment in the present case was not run as an enterprise as the one in Secretary for Justice v Lee Cho Keung & Ors[8] or the one in HKSAR v Lam Sze Kei & Another[9] (note: Prostitutes of the age of only 16 were found in Secretary for Justice v Lee Cho Keung & Ors[10], and the Court of Appeal used 3½ years’ imprisonment as the starting point.).  That said, the scale of operation of the vice establishment in the present case was quite large.  There is also evidence which shows that the operator intended to run the establishment in such mode of operation for a considerable period of time.  Having considered the authorities submitted by the defence, I accept the following points raised by the defence: no underage prostitute was involved in this case; nor was any girl forced to come to Hong Kong to be prostitute; nor was any prostitute severely exploited.  Besides, the way in which the prostitutes received and entertained customers were quite simple (but I consider that the establishment was being operated quite efficiently: see the transaction records produced by the prosecution).

36.I find that D1’s extent of participation was not much different from that of D2.  It is noteworthy that in the safe, apart from the cash, there were D1’s personal effects and belongings as well.  This shows that D1, not D2, was the person who was in charge of the operating fund of the establishment.  However, at the time of the offences, D2 was present in the operation centre, and he was the tenant of the operation centre.  D2’s fingerprints were lifted in the drawer in location 3 and on the transaction records in locution 4.  Finally, D2 also took part in the work of monitoring the prostitutes.

Conclusion

37.D1 has two previous convictions of breach of condition of stay, while D2 has a clear record.  Taking into account the principle of totality, the scale of operation of the vice establishment and the roles of the two defendants (as employees), I find that for D1, the overall starting point should be imprisonment for two years and nine months, and that for D2, the overall starting point should be two years’ imprisonment.  Both defendants are entitled to a one third discount.  Therefore, the total sentence of D1 shall be 22 months’ imprisonment and the total sentence of D2 shall be 16 months’ imprisonment.

38.As for the individual charges, the starting point of charges 1 to 4 which D1 faces is 27 months’ imprisonment for each charge.  After receiving the one third discount on account of her guilty pleas, D1 is sentenced to 18 months’ imprisonment for each of these four charges.  The sentences are to run concurrently.  For Charges 9 and 17 which D1 faces, the starting point is nine months’ imprisonment each.  Having been reduced by the guilty plea discount, the sentence for each of these two charges is six months’ imprisonment.  Both sentences are to be served concurrently.  The starting point of Charge 13 which D1 faces is six months’ imprisonment.  Having been reduced by the guilty plea discount, the sentence becomes four months’ imprisonment.  Taking into account the principle of totality, I order that two months of the sentences for Charges 9 and 17 shall run consecutively to the 18 months’ sentence for Charges 1 to 4, and that two months of the sentence for Charge 13 shall be served consecutively to the sentences for other charges.  The total sentence of D1 is 22 months’ imprisonment.

39.D2 has no previous convictions.  The starting point of Charges 1 to 4 which he faces is 21 months’ imprisonment each.  The sentence for each charge, after reduced by the one third discount given by reason of his guilty pleas, is 14 months’ imprisonment.  The sentences are to run concurrently.  The starting point of Charge 10 and 12 which D2 faces is nine months’ imprisonment each.  The sentence for each of these two charges, having been reduced by the guilty plea discount, is six months’ imprisonment.  The sentences are to run concurrently.  Taking into account the totality principle, I order that two months of the sentences for Charges 10 and 12 are to run consecutively to the 14 months’ imprisonment for Charges 1to 4.  The total sentence of D2 is 16 months’ imprisonment.

40.Charge 14 which D3 faces takes a starting point of six months’ imprisonment, and the sentence is reduced to four months’ imprisonment because of his plea of guilty.  The starting point of Charge 15 which he faces is nine months’ imprisonment, and the sentence becomes six months’ imprisonment after reduced by the guilty plea discount.  Taking into account the totality principle, I order that one month of the sentence for Charge 14 is to run consecutively to the six months’ imprisonment for Charge 15, making a total sentence of seven months’ imprisonment.

41.The starting point of Charge 16 which D4 faces should be six months’ imprisonment.  After it is reduced by one third because of his guilty plea, he is sentenced to four months’ imprisonment.

Translated by the Judgment Translation Unit of the Judiciary and vetted Mr. Patrick W.S. Cheung,Barrister-at-law.