HKSAR v. Tang King Keung Tony

HCMA 626/2017

[2018] HKCFI 202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 626 OF 2017

(ON APPEAL FROM ESCC 2350 OF 2017)

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REASONS FOR JUDGMENT

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1.The appellant appeals against the sentence of 8 months’ imprisonment imposed upon him for an offence of Conspiracy to live on the earnings of prostitution of others. The sentence was passed on 10 November 2017 upon the appellant’s plea of guilty.

2.At the hearing of the appeal I dismissed his appeal.  Below are my reasons for doing so. 

Brief facts

3.The appellant was the second defendant (D2) in the charge.  The facts admitted by the appellant revealed that he agreed with the first defendant (D1) in this case to arrange premises for one-woman brothels.  D1 would source the prostitutes who would then work at the premises arranged by D2.  Both of them would then have an equal share of the profits made by the prostitutes. 

4.Within the space of 2 months (between 19 June 2014 and 20 August 2014), D2 was in charge of arranging brothels for three prostitutes who entered Hong Kong from the Mainland. 

The Magistrate’s reasons for sentence

5.The magistrate[1] took into account D2 was 43 years of age with 7 previous convictions, none of which were similar.  He committed the present offence to pay for his children’s education fees. 

6.In passing sentence the magistrate considered the following:

(a)   The prostitutes were from the Mainland who by virtue of their two way permits could not work legally in Hong Kong;

(b)   Two of the three prostitutes worked for 13 days and 6 days respectively;

(c)   There was a detailed arrangement as to fees charged and profit sharing;

(d)   The scale of the operation and

(e)   The need for a deterrent sentence.

7.The magistrate bore in mind the role of D1 and D2 in the operation.  She found D2 took a more active role than D1 in the day to day management.  However, she found that D1 and D2’s culpability was similar and as the magistrate had already taken a 12 months starting point for D1, she was of the view that the same starting point should be adopted for D2.  As D2 had pleaded guilty she awarded him a one third discount and sentenced him to 8 months’ imprisonment. 

Grounds of Appeal

8.The appellant was not legally represented at this hearing.  In the appellant’s written grounds of appeal[2]; he stated that he had to take care of his elderly father and support his daughter to study at university.  Additionally, he complained that his sentence was longer than D1’s. 

9.At the hearing of the appeal the appellant further contended that there was an unjustifiable delay from the date of his arrest to charging him for this offence, thus he was under the strain of legal proceedings for a very long time.

Issue on Appeal

10.The issue on this appeal is whether the sentence imposed on the appellant is manifestly excessive.

Discrepancy of sentences

11.The appellant complained of the discrepancy of sentence imposed on himself and D1.  It was his understanding that D1 was sentenced to 6 months’ imprisonment and therefore his sentence was longer than D1’s. 

12.The appellant raised his concern about the disparity of sentences at the hearing before the magistrate.  As can be seen from the transcript[3] it was confirmed by the magistrate to D2 at the time that D1 was sentenced to 8 months’ imprisonment for each of the two offences after he had pleaded guilty and 4 months’ of one charge was made consecutive to the other, making a total of 12 months’ imprisonment. 

13.Although the magistrate found the appellant took a more active role than D1, she found that both the appellant and D1’s culpability was similar.  There was no discrepancy in the sentences passed therefore there is no merit in this ground of criticism. 

Delay in Prosecuting

14.The appellant was arrested in August 2014 but was not charged for this offence until July 2017.  The period between the two was approximately 3 years. It is his case that this was an unreasonable delay triggering stress and pressure on himself and his family.  The adverse effect of which was that his wife divorced him and he lost his children.  He sought a reduction to his sentence for the delay.

15.In Mills v HM Advocate and The Advocate General for Scotland 2002 SCR 860, 877, (PC) Lord Hope said that a “delay in bringing the accused to justice is widely recognised as a mitigating factor that can be taken into account when he is being sentenced.” This usually arises where the prosecution is at fault for the delay: HKSAR v Lau Kin-yu [2003] HKCU 251 (HCMA 391/2002, 7 February 2003, unreported). 

16.In Secretary for Justice v Schmitt [2008] HKCU 979 (CAAR 12/2006, 17 June 2008, unreported), Stuart-Moore VP noted that there is a delay in every case before trial, and that the ‘real question is whether there has been an unreasonable delay, through no fault of a defendant, which has contributed to his punishment’. The court will also need to be satisfied that the delay has ‘resulted in unfairness to the accused’: R v L (1995) 84 A Crim R 142, 145. (This paragraph, in its entirety, was cited with approval in HKSAR v Ho King-nang and Others (CACC 445/2010, 30 November 2011, unreported [89]).

17.In HKSAR v Sham Kwok-kee (CACC 142/2013, 11 April 2014, unreported), there was a delay of almost eight years between the arrest and charging of the accused, and this attracted a sentencing discount because of the ‘prolonged anxiety’ it had caused to the accused.

18.By way of background, this case stems from an undercover operation.  The operation turned overt in June 2015.  Soon thereafter the appellant was arrested.  The delay in this case as explained by Mr Franco Kuan, Senior Public Prosecutor (“SPP”) for the Respondent was for two main reasons.  The first was because of the difficulties in arranging a date for an identity parade with the appellant and the second because of the delay in obtaining legal advice. 

19.After the appellant’s arrest in June 2015 the police attempted to arrange an identity parade however constrained by the appellant’s work schedule no agreeable date could be arranged until 15 April 2016.  However, on that date the appellant failed to attend.  Finally, an informal identity parade was conducted on 7 June 2016 wherein the appellant was identified by the undercover officer. 

20.On the 6 August 2016 the file was sent by the police to the Department of Justice for legal advice.  The file was handled by one counsel.  However quite unfortunately that counsel became terminally ill. 

21.Mr Kuan informed this court that this was a large operation which involved 70 arrests and many legal issues.  In view of the size and complexity of the operation it took time for the advising counsel to deal with these matters then counsel fell ill. Thereafter the file was handed to a new advising counsel.  The appellant was eventually charged with the present offence about 3 years later in August 2017 and pleaded guilty on 10 November 2017. 

22.While recognizing the file was with advising counsel that fell terminally ill, and every sympathy is with the advising counsel, this was an unjustifiable delay resulting in a delay in the prosecution of the appellant through no fault of the appellant’s.  No fault can be laid with the appellant for the length of time it took to arrange an agreeable date for an identity parade as throughout that period legal advice was still pending.  In the circumstances of this case, three years taken to charge the appellant was unduly lengthy and a discount to the appellant’s sentence is warranted. 

Appropriateness of sentence

23.There is no tariff for the offence of living on the earnings of prostitution of others.  The maximum sentence has increased to 10 years from 5 years since 1997.  This reflects the legislature’s view on the seriousness of the offence. 

24.The magistrate cited the cases of R v Yau Chi Keung HCMA1597/1089 and R v Chan Wing Lung Anor [1991]2 HKC 116 in support of an immediate custodial sentence as the appropriate sentence for the offence in question.

25.It is evident that the magistrate considered the relevant factors before passing sentence.  In her Reasons for Sentence at paragraph 11 she stated: -

“In considering the appropriate sentence, one has to consider the scale and sophistication of the operation including the number of prostitutes involved, the age of the prostitutes involved, whether the prostitutes worked illegally in Hong Kong, whether force or threats were involved, whether exploitation was involved, and the amount of profit, etc.”

26.In HKSAR v Chan Yuk-bun [2009] 2 HKC 53 (the defendant ran a website that provided for advertisement of services rendered by prostitutes), the Court of Appeal stated that “the element of control is arguably the single most significant feature in arriving at an appropriate sentence” (at para. 11). The scale of the operation was also considered (at para. 6).

27.In addition to the element of control, it was stated in HKSAR v Pang Man Wai and Anor. [2008] 4 HKC 413 (D4 controlled three prostitutes who sneaked into Hong Kong from Mainland China. Two of the girls were forced to become prostitutes and one of the girls was only 16) that the element of duress was held to be “an important aggravating factor” and also referred to whether the prostitutes were in Hong Kong illegally, and the age of the prostitutes (at para. 13).

28.In R v Ma Kam-hon (unreported) CACC30/1998 the Court of Appeal approved a 12 months starting point for facts less serious than the present case.  The defendant in that case encouraged his girlfriend to become a prostitute in order to earn some money for him.  His girlfriend did so for 2-3 months.  Unlike the present case there was only one girl involved, there was no obvious element of control and there was no illegal working in Hong Kong.  Also noteworthy was that in that case the maximum sentence was only 5 years at the time of sentence. 

29.In contrast to the present case, there are more aggravating factors present in this case, the appellant played a larger role organising the girls, there were more girls, there was an element of illegal working and the scale of operation.  Further the applicable maximum is now 10 years’ imprisonment.  For these reasons the sentence passed by the magistrate in this case may be said to be on the low side.  

30.What discount is available to the appellant for the unreasonable delay in charging the appellant is however in my view offset by the moderate sentence of 8 months’ imprisonment. 

31.For the reasons aforesaid, the appeal against sentence was dismissed.  The sentence was not manifestly excessive or wrong in principle. 

Mr Franco Kuan, SPP of the Department of Justice, for the respondent

The appellant appeared in person