HKSAR v. Lau Siu Hung

CACC000146/1999

CACC 146/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 146 OF 1999

(ON APPEAL FROM DCCC 646 OF 1998)

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Coram: Hon. Mayo, Leong and Stuart-Moore, JJ.A. in Court

Date of hearing: 1 June 1999

Date of delivery of judgment: 1 June 1999

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. The applicant pleaded guilty before H.H. Judge Muttrie in the District Court to two sets of blackmail and theft offences, the 1st and 2nd counts being one set, the 5th and 6th counts being the other. She also pleaded guilty to the 7th count of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.

2. Judge Muttrie adopted 18 months as the starting point for each of the blackmail and theft offences. He imposed at the end 9 months each on the 1st and 2nd counts concurrent and 9 months each on the 5th and 6th counts concurrent but consecutive to the sentences on the 1st and 2nd counts. Judge Muttrie also imposed 15 months imprisonment on the 7th count concurrent with the 5th and 6th counts but consecutive to the sentences on the 1st and 2nd counts, making a total of 24 months imprisonment.

3. The applicant now seeks for leave to appeal out of time against sentence.

4. The applicant was a prostitute in Shenzhen and she was brought to Hong Kong illegally by a pimp to ply her trade. The first set of blackmail and theft offences arose when the applicant went to the home of a client and after sexual intercourse, she called the pimp who spoke to the client. The pimp demanded the client to pay an extra $4,000 or he would be beaten up. The client obliged and gave the applicant $4,000. The second set of similar offences arose in the same manner. The applicant went to the place of a police officer posing as a client. When the officer said he wanted a different girl, the applicant called the pimp and the pimp threatened the officer and demanded money. As a result, the officer gave the applicant $1,000. When the officer sent the applicant away without having sexual intercourse, the pimp demanded a further $5,000. The officer gave the applicant $2,000 as a result. The pimp was eventually arrested by the police. The applicant identified him to the police as the person with whom she had worked in the scheme of blackmail and theft. The applicant gave evidence on the subsequent proceedings against the pimp and another confederate in the scheme. In the end, the pimp pleaded guilty and the confederate was convicted after trial. The pimp was sentenced to 1 year imprisonment whereas the confederate was sentenced to 2 years imprisonment. This occurred in September and October 1998 after the applicant was sentenced in August 1998.

5. In her mitigation, the applicant told the Judge that before she came here she thought she was only to act as a prostitute in Hong Kong but after arriving here, she was told to take part in the scheme of blackmail and theft. Judge Muttrie considered the applicant was somewhat under the control of the pimp and could not refuse to do as she was told. Taking this into account as well as her plea, her co-operation with the police and willingness to give evidence against the pimp, Judge Muttrie gave her a discount of 9 months for each of the blackmail and theft offences. He imposed 15 months for the immigration offence in accordance with the sentencing guidelines. With the principle of totality in mind, he considered a total of 24 months was sufficient to reflect the overall criminality in these offences. He ordered the sentences to run concurrently and consecutively in such a manner as to achieve this total of 24 months imprisonment.

6. We consider the total sentence of 18 months after plea for two sets of blackmail and theft offences where a prostitute and her pimp worked hand in hand to extort money from clients in a vulnerable position very generous. No doubt the Judge did so because he had in mind the applicant's willingness to give evidence for the prosecution in proceeding against the pimp. However, to give such a generous discount at that stage was premature since it was not then known whether the applicant would do so eventually. 15 months for the immigration offence is correct and on the authorities, it would have been open for the Judge to make the whole term of 15 months consecutive to the sentences on the blackmail and theft offences. But he made the total come down to 24 months. The Judge indeed had taken a very lenient view. As subsequently transpired, the applicant did give evidence in proceedings against the pimp as she had promised, although after she was sentenced. It would be her reasonable expectation, having co-operated and given evidence at her own risk, that this court would take that into account and give her some reduction in the total sentences imposed. As we said before, the Judge had been very lenient. However, to encourage defendants to give evidence in proceedings against accomplices, we think this is a case where a further discount on the sentences imposed could be made. In that event, we consider that a reduction of 3 months from the total sentence would do justice. We therefore grant the application for leave to appeal against sentence out of time treat the application as appeal against sentence and set aside the sentence of 24 months imprisonment substituting therefore a sentence of 21 months. This result may be relieved by ordering only 6 months of the 9 months concurrent sentence on the 5th and 6th charges to run consecutively to the sentences on the 1st and 2nd charge. The application is allowed to this extent.

Representation:

Ms Anna Lai, S.G.C. (D.P.P.) for Respondent

Lau Siu-hung, Applicant in person