HKSAR v. Mwanyakule Mwajuma Patson

HCMA 701/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 701 OF 2016

(ON APPEAL FROM ESCC 2608/2016)

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BETWEEN

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J U D G M E N T

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1.The Appellant was convicted after trial in the Magistrates’ Court on two charges.  Charge 1 was of soliciting for an immoral purpose, contrary to Section 147(1)(a) of the Crimes Ordinance, Cap 200.  She did that in a street corner in Wan Chai on 14 August 2016.  Charge 2 was of establishing a business of prostitution at that place and time while being a person in respect of whom a removal order was in force, contrary to Section 38AA(1)(b) of the Immigration Ordinance, Cap 115.  The Appellant was sentenced to a total term of 22 months’ imprisonment.  That was by way of concurrent terms of 3 months’ imprisonment under Charge 1 and 22 months’ imprisonment under Charge 2.

2.Complaining that her sentence is too severe, the Appellant appeals against it.

3.Why he sentenced the Appellant as he did appears in paragraphs 7 to 11 of the Magistrate’s Reasons for Sentence.  Those paragraphs read as follows:

“ 7. The two offences occurred in Wanchai, an area which is widely known for prostitution. There is also an issue of public health. The Court is entitled to take this into consideration upon sentencing.

8. As regards the 1^st Charge, the usual sentence for a first time offender after trial is imprisonment for 3 months: see HKSAR v Wang Fang-lin HCMA 635/2002. In that case, the offence also took place in Wanchai.

9. As regards the 2^nd Charge, in HKSAR v Usman Butt HCMA 70 of 2010, it was decided that imprisonment for 15 months applied to cases under section 38AA(1)(b). This had allowed for a guilty plea. Without the normal one-third discount, it is 22 to 23 months. It is subject to upward adjustment with regard to circumstances which may aggravate the offence.

10. I take the view that the facts set out in paragraph 7 above are aggravating factors. Nevertheless, given the Defendant’s clear record, I have not taken into consideration of the sentencing.

11. I have heard the submissions of Counsel for the Defendant.  Having considered the facts of this case, I do not find any circumstances justifying a reduction of the sentence. Having regard to the principle of totality, I ordered the two sentences to run concurrently.”

4.In my view, the Magistrate sentenced the Appellant within the appropriate range. There is no basis on which to interfere with this sentence.

5.The appeal against sentence is therefore dismissed.

Ms Audrey Parwani, SPP of the Department of Justice, for the respondent

The appellant appeared in person