HKSAR v. Gallego Jeanette Villaflores

DCCC 83 & 463/2019

[2019] HKDC 1461

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 83 & 463 OF 2019

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REASONS FOR SENTENCE

1.D3 pleads guilty to one joint charge of conspiring with Wong Pui Ting, Heidi (D1) and Palpal Latoc Jo-an Evera (D2) to live on the earnings of prostitution of others, contrary to sections 137(1), 159A and 159C of the Crimes Ordinance[1].

2.The trial of D1 and D2 is expected to take place next year.

3.D3 first came to Hong Kong from the Philippines in 2000 and has since that time been permitted to work as a domestic helper.  D3 was arrested on 15 May 2018 and was remanded in custody until she was granted bail in January this year. 

4.After being granted bail D3 has not been permitted to work and lives in a shelter for domestic helpers run by the Philippines Consulate.  The Consulate General has attended court today.

5.Ms Lo informs the court that the trial date for D1 and D2 will be set down in November 2019.  The trial will therefore be sometime next year.  Mr Lee submits that any further delay in sentence would be prejudicial to D3 and asks that D3 be sentenced today.  Mr Lee confirms that D3 will not give evidence for either the prosecution or the defence.

6.The prosecution considering D3’s role to be relatively minor and that her immigration status does not allow her to stay in Hong Kong and therefore work, agrees that D3 should be sentenced before the trial of D1 and D2.

7.Notwithstanding this is a joint charge and the usual practice is that all defendants are to be sentenced at the same time by the same judge, taking into account D3 has served almost eight months on remand; while on bail is unable to work; the likely sentence; D3 will not give evidence for either the prosecution or the defence and that the prosecution agrees to D3 being sentenced first, I am satisfied these are exceptional circumstances and that D3 can be sentenced before the trial of D1 & D2. 

Summary of facts

8.Full particulars of the offence are set out in the facts admitted by D3 today.  In summary a sex syndicate operated six internet websites offering the services of prostitutes between May 2009 and May 2018.

9.Between 16 April 2018 and 15 May 2018 undercover police officers called phone numbers listed on the websites offering escort services or booked the escort services via WhatsApp and SMS messages.  The undercover police officers were directed to various hotels where they were offered sexual services.  Payments for sexual services were made by either credit card or cash.  Some of the sex workers were Russian and Venezuelan passport holders who were visitors to Hong Kong.

10.Enquiries revealed that the mobile phone numbers of the websites were registered by Firstmount Investments Limited, a company solely controlled by D1, with the billing address being D1’s residence.  All incoming calls were automatically forwarded to three landline numbers registered by another Hong Kong company with the billing address also being D1’s residence. 

11.The operation turned overt on 15 May 2018 when the police raided D1’s residence and arrested D1, D2 and D3.  D2 and D3 were working as domestic helpers for D1. 

12.Inside D1’s residence the police found, inter alia, mobile phones containing a large volume of text messages of clients asking for “full service”; landline phones; printouts from the websites and telephone lists of Hong Kong hotels; laptop computers containing photographs of the websites; handwritten ledgers containing details of the sex workers and financial records of the business showing income for the period 2009-2018 of about $31.5 million and the domestic helper employment contracts of D2 and D3 showing D1 as the employer. 

13.Under caution D3 admitted that D1 asked her to help receive phone calls at home from callers who wanted sex service and then to arrange a girl to go to a hotel to meet the caller and have sex service.  D3 said she could earn about one to two thousand dollars a month.  

Mitigation

14.In passing sentence, I have carefully considered the oral and written submissions of Mr Lee including that since her divorce in 2000 D3 has worked in Hong Kong as a domestic helper so that she could raise her two young children aged 5 and 7 at that time and now wishes to return to the Philippines as soon as possible to reunite with her children[2]. 

15.I have read the mitigation letters written by D3, her children and the Municipal Mayor of Laua-an, Antique.  I take into account D3 has no previous convictions in Hong Kong or the Philippines[3].   

Sentence

16.There are no guideline sentences for offences of living on the earnings of prostitution although immediate imprisonment is the norm with the length of sentence depending on the particular facts; the scale of the operation and the role of the defendant.

17.The scale of the operation was clearly very large, spread over nine years and involving about $31.5 million in income and prostitutes who were visitors to Hong Kong.  Ms Lo accepts while an inference may be drawn from the handwritten ledger that D3 knew foreign prostitutes were used there is no evidence that D3 knew their immigration status. 

18.Mr Lee tells the court that in May 2009 D1 told D3 she could earn extra money by helping to answer calls for arranging massage service which D1 said was legal. About a year later when D3 realised the phone calls were for arranging prostitutes she was afraid that if she refused to assist any further her employment contract would be terminated and therefore out of greed D3 continued to earn the extra money.  D3 says on average she earnt an extra $1,500 per month which over the nine years amounts to about $162,000[4].

19.As noted under caution D3 said that she helped to receive calls at home and arranged girls to go to hotels to meet customers[5].  Mr Lee explains that after D3 received the call from a customer she would contact an agent who would make the arrangements for the customer to go to the hotel for sex service[6].    

20.Ms Lo does not challenge that the role of D3 was limited to receiving phone calls from the customers; that the arrangements for the prostitutes were made through an agent and therefore D3 had no direct contact with the prostitutes; and that D3’s earnings were as claimed in mitigation.    

21.Mr Lee refers the court to HKSAR v Tam Ka Chun, Danny, a case also involving the arrangement of prostitutes through internet websites in which the appellant also received calls and arranged prostitutes to meet customers in hotels[7].

22.Whist the role of D3 is similar I am satisfied the present case is less serious. Albeit the conspiracy in HKSAR v Tam Ka Chun, Danny, was for a shorter period, around five years, the appellant was responsible for charging the fees and keeping the relevant books of account.  The earnings of the appellant were also substantially more. 

23.Taking into account all the circumstances of the offence I am satisfied the proper starting point after trial is 1 year and 3 months’ imprisonment.  Giving D3 full credit for her plea of guilty reduces the sentence to 10 months’ imprisonment.

Delay

24.As noted earlier the defendant was arrested on 15 May 2018, over seventeen months ago. 

25.Delay in bringing an offender to justice is a mitigating factor which may be taken into account in sentence.  All the circumstances must be looked at including whether the offender has acknowledged guilt; the size of the investigation and whether the time taken to bring the case to court was longer than necessary[8].

26.D3 was first brought to court on 18 May 2018.  The case was transferred to the District Court on 28 January 2019.  Ms Lo has explained that between May 2018 and January 2019 police investigation was on-going and concerned thirty-seven bank accounts.

27.After the case was transferred to the District Court the defence applied on 14 February 2019 for an adjournment for the prosecution to supply English translations of all documents.  This took three months to complete.  D3 first gave an indication of her plea of guilty on 2 July 2019 which was subject to final instructions.  On 22 August 2019 D3 confirmed her indication to plead guilty.   

28.Cleary time was required to investigate the case.  After D3 was charged the time taken to bring the case to the District Court is largely due to the scale of the investigation of a conspiracy which took place over nine years and involved a multimillion dollar business.  I am satisfied that there has been no delay in the investigation.  Equally I am satisfied there has been no delay since the case was transferred to the District Court.

29.In the circumstances I decline to further reduce the sentence by reason of the time taken to investigate the case and bring to the District Court for plea and sentence.

30.D3 is convicted and sentenced to 10 months’ imprisonment.