HKSAR v. Khampuanbut La Iat

CACC 247/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 247 OF 2016

(ON APPEAL FROM DCCC NO 259 OF 2016)

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J U D G M E N T

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1.On 18 July 2016, following her pleas of guilty, the applicant was convicted in the District Court by HH Judge Woodcock (“the judge”) on eight charges of trafficking in a person to Hong Kong, contrary to section 129(1) of the Crimes Ordinance, Cap 200 (Charges 1 to 8); and two charges of keeping a vice establishment, contrary to section 139(1)(a) of the Crimes Ordinance, Cap 200 (Charges 9 and 10). On the same day, she was sentenced to an overall term of 18 months’ imprisonment.

2.On 8 August 2016, the applicant filed a notice of application for leave to appeal (Form XI) and she now seeks leave in person to appeal against her sentence.

Facts

3.According to the facts admitted by the applicant, the case involved two vice establishments, one being in Shau Kei Wan, the subject premises of Charge 9 (“VE1”) and the other in Yuen Long, the subject premises of Charge 10 (“VE2”).  The applicant was at all material times the tenant of both sets of premises.

4.On 28 January 2016, a number of undercover police officers were deployed to patronize VE1 and VE2 separately as customers.  The operation established the true nature of the two premises, which were found to be offering sexual services by prostitutes, all of them of Thai nationality.

5.Regarding VE1, the evidence revealed the involvement of four prostitutes, namely, X, Y, Z and one Triamklang Dokmali.  X, Y and Z were persons named in the following trafficking in a person charges: X – Charge 1; Y – Charge 2; and Z – Charges 3 to 6.  Regarding VE2, there were two prostitutes involved, namely, A and one Saithong Thanwarat.  A was the person named in Charges 7 and 8.

6.On 28 January 2016, the applicant was observed entering VE1 at 9.34 pm.  When she left the premises at 10.33 pm, she was intercepted by police.  Upon search, the applicant was found to be in possession of keys to various rooms in VE1 and the marked money used by the undercover police officers.  The applicant was arrested but remained silent under caution.

7.X, Y, Z and A assisted the police and it soon became clear that all four of them were visitors from Thailand.  They had come from Thailand to Hong Kong through the arrangement of the applicant to work as prostitutes in VE1 and VE2, or in another vice establishment in Sheung Shui.  Their ages ranged from 22 to 28. They told the police that the applicant would pocket all of their earnings as prostitutes from a specified number of customers, being settlement of the advanced payment made by the applicant to facilitate their journey to Hong Kong.  After they had served a specified number of customers, they would then be entitled to a portion of their earnings, whilst the remainder would be returned to the applicant as commission.  Whilst Z and A had come to work as prostitutes in Hong Kong on four occasions and twice respectively, it was the first time that X and Y had been arranged to come to work in Hong Kong as prostitutes.

Mitigation

8.The applicant was 55 years of age at the time of her sentence.  She was a Thai national, who had come to Hong Kong in 1989 as a domestic helper.  After her divorce from a Hong Kong citizen in 1992, she had worked as a cleaner in various places.  She had maintained a clear record throughout her time in Hong Kong.  It was submitted on her behalf by way of mitigation that the applicant suffered from diabetes, fatty liver and spinal problems, yet she still had to send money back to Thailand every month in order to pay for the medical expenses of her brother, who was suffering from serious kidney problems.

9.The applicant came to know a Thai lady in a Thai restaurant in Kowloon City, who was also the former owner of the vice establishments.  The applicant worked as janitor for this Thai lady and, when the latter decided to retire and return to Thailand, she asked the applicant to take over the businesses.  The prostitutes involved in the present case were referred to the applicant by the said Thai lady.

10.Regarding the appropriate sentence to be imposed, it was emphasised that the Thai prostitutes concerned were all of full age and had never been misled or persuaded by the applicant to participate in prostitution.  They were all working as prostitutes somewhere before they contacted the applicant and there was no suggestion that they were somehow kept in confinement.  In respect of Charges 9 and 10, it was said that both VE1 and VE2 were comparatively small scale businesses and the applicant did not make a huge profit from their operation.

Reasons for sentence

11.The judge accepted that the prostitutes involved were willing participants, and that there was no evidence of any coercion of them by the applicant.  The judge also accepted that there was no tariff for the offence of trafficking in a person to Hong Kong, and the starting point would depend on the facts of each case.  The judge considered the applicant’s pleas of guilty, her clear record, the fact that the prostitutes involved were willing participants and that they had entered Hong Kong legally rather than being smuggled in as illegal immigrants.  Furthermore, she held that there was “no serious or obvious exploitation” of the women in question.  The judge considered that this was not the most serious example of an offence of this nature.

12.The judge adopted a starting point of 24 months’ imprisonment in respect of Charges 1 to 8, and 15 months’ imprisonment in respect of Charge 9, given that VE1 had been run for a period of some 15 months. In respect of Charge 10, she adopted a starting point of 12 months’ imprisonment, since VE2 had been in operation as charged for just over 2 weeks.  The sentences on Charges 1 to 8, Charge 9, and Charge 10 were reduced to 16 months, 10 months and 8 months respectively for the applicant’s pleas of guilty.

13.The judge considered that Charges 9 and 10 went together with Charges 1 to 8.  She ordered the sentences on Charges 1 to 8 to be served concurrently, and the sentence on Charge 10 to be served wholly concurrently with the sentence on Charge 1.  However, 2 months of the sentence on Charge 9 was ordered to be served consecutively to the sentence on Charge 1, with the balance to be served concurrently, in light of the principle of totality.  The resulting overall term imposed upon the applicant was 18 months’ imprisonment.

Grounds of appeal

14.In her initial Grounds of Appeal, attached to her Form XI filed on 8 August 2016, the applicant asked for mercy and effectively reiterated all of the matters raised by her counsel in mitigation.

Respondent’s submissions

15.Mr Derek Lai, in his written submissions on behalf of the respondent, submits that the overall sentence of 18 months’ imprisonment was in fact a lenient sentence, considering the multitude of offences involved.  The starting point of 24 months’ imprisonment adopted in respect of Charges 1 to 8, and which was ultimately reduced to 16 months for plea, accorded with relevant sentencing authority.  Mr Lai referred to the following authorities in support of the respondent’s position:

(a) In R v Soonthorn Chookiat Pravit[1], the applicant pleaded guilty to a charge of trafficking to Hong Kong in a woman, contrary to the then section 129 of the Crimes Ordinance.  The applicant had escorted a Thai woman to Hong Kong in order to work as a prostitute and his role was to hand her over to two men at the airport.  The sentencing judge took a starting point of 2 years’ imprisonment and reduced it to 18 months’ imprisonment for plea, which approach was entirely endorsed by the Court of Appeal, given the gravity of the offence and the international element involved.  It should be noted, however, that the maximum sentence at the time of that decision was only 7 years’ imprisonment, whereas the present incarnation of section 129(1) prescribes a maximum sentence of 10 years’ imprisonment.

(b) In HKSAR v Chan San San (A1) & Sze Tak Hung (A2)[2], A2 was convicted after trial of one charge of conspiracy to traffic in a person to Hong Kong.  The applicant, together with others, had participated in arranging an unspecified number of Mainland women to come to Hong Kong for the purposes of prostitution.  The Court of Appeal held that the sentence of 2½ years’ imprisonment after trial was not excessive.

(c) In HKSAR v Lau Chi Yui & others[3], D1 to D3 were convicted after trial of a joint charge of trafficking in a person from Hong Kong.  They had jointly arranged for a girl, aged 16, to work in a karaoke establishment in Japan as a prostitute. The 3 years’ imprisonment imposed on each of the defendants was upheld by the Court of Appeal, with the Court emphasising the significance of the element of deterrence in sentence where serious exploitation was involved.  Given the girl’s age, the Court observed, at para 23, that the sentence “might well have been longer”.

16.Regarding the sentences in respect of Charges 9 and 10, Mr Lai submits that the starting points adopted by the judge for the respective charges were appropriate in the circumstances.  He cites a Magistracy Appeal, namely HKSAR v Lau Tai So[4], where the appellant had originally pleaded guilty to managing a vice establishment.  The sentencing magistrate, having regard to the small scale of the establishment, the prevalence of such offences, and the appellant’s previous criminal record, adopted a starting point of 15 months’ imprisonment. The appellate court, in dismissing the appeal, held, after reviewing a number of authorities, that had the appellant been a first offender, a starting point of 12 months would not have been improper; however, the appellant was a repeat offender and the starting point of 15 months’ imprisonment was by no means excessive.

17.Mr Lai submits that the applicant faced eight charges of trafficking in a person to Hong Kong and two charges of keeping a vice establishment.  The eight trafficking in a person offences involved helping four foreign nationals to enter Hong Kong to work as prostitutes, some repeatedly, in three separate premises.  The two keeping a vice establishment charges involved six prostitutes, straddling a period of some 15 months.  The applicant was the ‘boss’ who was the actual operator of the vice establishments.  It was submitted that the ultimate sentence of 18 months’ imprisonment could not be regarded as excessive; in fact, the sentence was lenient inasmuch as the judge only ordered 2 months of Charge 9 to run consecutively to the 16 months’ imprisonment term.  Mr Lai further argues that these were serious offences involving an international element.

Consideration

18.However the sentences were computed, the appellate Court is primarily interested in the propriety of the overall sentence, which in this case was 18 months’ imprisonment.  While the Court, in assessing the correctness of that sentence and its notional starting point of 27 months’ imprisonment, would bear in mind the judge’s view that “there was no serious or obvious exploitation” of the women in question by the applicant, it would also note the following circumstances present in this particular case: the number of women involved; the fact that there were two different vice establishments concerned; the duration of time in which VE1 in particular had been in operation; the applicant’s significant role in arranging for the women to come to Hong Kong to work as prostitutes; and her substantial role in actually running the two vice establishments in premises of which she was the tenant.

19.When all of these factors are placed in the balance, I do not see any arguable ground of appeal that the overall sentence was either wrong in principle or manifestly excessive.  Accordingly, I refuse leave to appeal against sentence.

20.The applicant is duly advised that she has the right to renew her application for leave to appeal to the Court of Appeal, but is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending her appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.

Mr Derek Wong SPP, of the Department of Justice, for the Respondent
(Mr Derek Lai ADPP in written submissions for the Respondent)

The Applicant appeared in person