HKSAR v. Cheung Yat Sing

HCMA 536/2019

[2020] HKCFI 752

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 536 OF 2019

(ON APPEAL FROM ESCC 1490/2019)

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J U D G M E N T

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1.The appellant had pleaded guilty to one charge of living on earnings of prostitution of others (Charge 1) and two charges of conspiracy to pervert the course of public justice (Charges 2 & 3) on 12 June 2019. He was subsequently sentenced on 20 September 2019 to 10 months’ imprisonment on each charge with the sentences for Charges 2 & 3 to run wholly concurrently but to run consecutively to that for Charge 1, making a total sentence of 20 months. The appellant appealed against his sentence.

Facts

2.Enforcement actions were made by the Special Duty Squad 2 of Wanchai District on two buildings, namely Fuji Building and Hop Yee Building at the material time.  The police was acting in conjunction with the Immigration Department for suspected prostitution activities in one‑woman‑brothels involving Mainland women, this necessarily involved police officers posing as patrons to visit these brothels and when the woman was found to be a non‑resident or a tourist, she would then be arrested for the offence of breach of condition of stay.

3.In relation to Charge 1, on the evening of 28 December 2017 in an undercover operation, two brothels were visited and marked money were paid to the two prostitutes.  On 29 December 2017, the appellant was arrested and five of the twelve marked banknotes paid to the two prostitutes were recovered and seized from the appellant’s pocket.  In a subsequent video‑recorded interview, the appellant admitted that since May 2016, he had rented rooms at Fuji Building and had arranged for Mainland women to provide sexual services there and in November 2017, he had also arranged for Mainland women to provide sexual services in Hop Yee Building and he would take a share from the fees charged by these prostitutes and, on the day of his arrest, he said he had used a total of five rooms at Fuji Building and Hop Yee Building.

4.In relation to Charges 2 & 3, in a subsequent video‑recorded interview, the appellant admitted that in May 2016, an unidentified male police officer approached him and from what was said to him, the appellant believed that the officer wanted him to surrender prostitutes for arrest in future police enforcement action, he then informed the second defendant (D2) in the case and others about this and they all agreed that they will co‑operate with the police in surrendering some prostitutes who came to Hong Kong on two way permit for arrest by police in the future.  Since then, the appellant asserted that he would be notified in advance by an unidentified officer by phone or on “WeChat” as to the date of the police operations to be conducted at Fuji Building.  Once he is notified, the appellant said he would send coordinates with D2 and five other operators to arrange four to five prostitutes for arrest for the upcoming operation, then he would inform the unidentified officer as to which rooms at Fuji Building were occupied by those designated prostitutes and on the date of police actions, the police officers were only raid those rooms designated by the appellant.  The appellant further asserted that some time after the commencement of this arrangement, also in 2016, the unidentified officer introduced a police constable Chan to the appellant and told the appellant to liaise with PC Chan in relation to their arrangements.  The arrangements continued until some time in March 2017, when for reasons unknown to the appellant, PC Chan stopped providing him with the date of impending police action.

5.In the admitted facts, it is stated that PC Chan was posted to the Wanchai Squad on 9 October 2016 and remained in this Squad as at 29 December 2017.  D2 was arrested on 29 December 2017 and in his video‑recorded interview, he agreed to what the appellant had said in his video‑recorded interview.

6.The appellant’s mobile phone was examined by the police and it revealed that in his WhatsApp’s messages, there were discussions between him and other operators of the one‑woman‑brothels between August 2016 and March 2017 in relation to the arrangement that the appellant was said to have made with the unidentified police officer.  Also from the messages, the fact was revealed that the appellant did inform the others that police enforcement actions would be taken on 14 November 2016, 6 December 2016 and 8 March 2017, and it is admitted in the admitted facts at paragraph 10 that the police confirmed that the police enforcement actions were taken by the Squad at Fuji Building as well as other locations and the Wanchai District on those three days.  Also revealed in the WeChat discussions between the appellant and D2 on 23 March 2017, it was discussed that the specified arrangements with the police had been suspended.

7.An examination of the mobile phone of PC Chan also revealed his communications with a PC Li on 12 January 2017 which disclosed that PC Chan and PC Li had maintained dubious associations with brothel operators in Fuji Building and Hop Yee Building in relation to the surrender of prostitutes for police arrest, and that PC Li had also proposed to PC Chan that if the operators refused to further surrender prostitutes, the police should take more stringent police enforcement actions on these two buildings.

8.Because of what the appellant and D2 in the case had revealed to the police, the ICAC then took over the investigations.  The appellant was further interviewed and subsequently on 14 August 2018, the file was submitted to the Department of Justice for legal advice and it was not until 30 April 2019, six months later, that the Department of Justice provided the legal advice that the appellant and D2 should be charged, so finally on 10 June 2019, charges were laid against the appellant and D2.

9.On 12 June 2019, at the first court appearance, the appellant pleaded guilty to all three charges and offered his assistance to the ICAC and the case was therefore adjourned to 7 August 2019.  A statement was taken from the appellant on 23 June 2019 and the matter was again submitted to the Department of Justice on 28 June 2019.  On 22 July 2019, further legal advice was received.

10.On 7 August 2019, the appellant and D2 made their second court appearance whereupon the appellant’s case was adjourned to 29 August 2019 for sentence.

11.On 29 August 2019, the appellant appeared for a third time and his case was adjourned to 18 September 2019 for submissions regarding delay in prosecution and reduction in sentence for assistance to the authorities.

12.On 18 September 2019, on the appellant’s fourth court appearance, mitigation was made and he was finally sentenced on 20 September 2019.  D2’s case was adjourned to 9 October 2019 and D2 had pleaded not guilty and, I was informed that he had absconded.  I was also informed in court by the respondent’s counsel that after further considerations, it was decided by the Department of Justice that the offer of assistance by the appellant was not acceptable and so his offer was rejected.  No explanation was forthcoming as to why this offer was rejected, as from the papers, one could see that the appellant’s allegations were in some ways supported by the messages found both on his telephone and also on PC Chan and PC Li’s telephones.  Be that as it may, this was a decision that was arrived at by the Department of Justice and to be fair, perhaps I am not aware of the whole picture, so we shall leave that there.

Grounds of appeal

13.Mr McGowan leading Ms Charlotte Kong had prepared the following perfected grounds of appeal:

(1) the learned principal magistrate failed to give sufficient consideration to the delay in bringing the appellant’s case to court, notwithstanding:

a. his full admission to the original allegation (Charge 1) after arrest on 29 December 2017;

b. his full admissions after his initial arrest due to his unlawful arrangements with two police officers (Charges 2 & 3), matters of which the ICAC investigators were apparently unaware and which had concluded in March 2017; and

c. the charges in the appellant’s “life style” and cessation of his criminal activities following his arrest.

(2) The learned principal magistrate erred in passing totally consecutive sentences for offences which arose out of the same criminal activities and overlapped in time.

(3) Giving that the appellant was not the instigator of the “conspiracy to pervert”, the decision not to prosecute those who were, despite the identification, provides a “justifiable sense of grievance”.

(4) For the above grounds, and/or generally, the appellant’s overall sentence is wrong in principle and/or manifestly excessive.

Discussions

14.It is clear from Mr McGowan’s submissions that the appellant does not argue that the starting point as adopted by the learned principal magistrate was wrong or manifestly excessive.  What is really contended is that the learned principal magistrate should have taken into account, when assessing the totality of sentence, to make the sentence for Charges 2 & 3 at least partly consecutive to Charge 1 because of the background of delay which I had set out above and also the fact that the appellant must have a justifiable sense of grievance in that not only did he make a full confession and offering to assist the authorities in pointing out the police officers who had conspired with him.  However, at the end of the day, none of the others had been arrested or tried, apart from D2, and D2 had absconded.

15.I am, of course, also ad idem with the view of the appellant that the starting point as adopted by the learned principal magistrate was the correct one.  I do, however, having considered the fact that delay in sentencing of the appellant was due to no fault of his own.  In fact, it was due to his honesty in confessing to his own role and the role of the others which led to a very extensive investigation and thus delayed the charges being laid against him and thus I do agree that in view of that, he should be given a wider latitude in discount of sentence in these circumstances as an act of mercy.

16.Furthermore, I do note that as Mr Kuan pointed out in the case of Z v HKSAR (2007) 10 HKCFAR 183 at paragraph 14, Li CJ (“as he then was”) said:

“14. . . . Further, quite apart from self‑interest, there are cases where the defendant on being arrested wishes to turn over a new leaf and to make a clean breast of his criminal activities. His assistance to the authorities may depending on the circumstance be accepted as a demonstration of genuine remorse which would be taken into account as a separate mitigating factor in sentencing.”

17.In this case, as can be seen from the chronology I have given, it is clear that the appellant upon arrest did make a clean breast of his activities and it was as a result of this that he had to suffer a delay in having proper charges laid against him and in his sentencing he received no credit for his assistance because as I had said ultimately, the decision was that it was decided by the Department of Justice that for reasons which is not all known to me, that they cannot use him as a witness.

18.In the circumstances, I do agree, therefore, that the appellant does merit a reduction in sentence for the delay and that the circumstances indeed gave him a justifiable sense of grievance.

19.However, I do not think that his change in life style was, as Mr Kuan said, in any way extraordinary and so the learned principal magistrate was correct in not making it a mitigating factor.

20.I do not agree that the learned principal magistrate was wrong in passing consecutive sentence for the conspiracy offences to Charge 1 because they are actually separate offences although one may say it did overlap in time but certainly the criminal activities for the offences were separate.  I also do not agree that the appellant would have a justifiable sense of grievance for the fact that the Department of Justice decided not to prosecute the others he had identified in the conspiracy.

21.Therefore, in view of what I had said above, I consider that the overall sentence in this case should be one of 15 months and so I will allow the appeal and I will sentence in the following way:

Charge 1	:	the 15 months starting point will be reduced to 10 months;
Charge 2	:	similarly 15 months reduced to 10 months; and
Charge 3	:	15 months reduced to 10 months.

22.Charges 2 & 3 will be concurrent and the sentence for Charges 2 & 3 of 10 months, 5 months will be consecutive to the 10 months for Charge 1, and 5 months concurrent, that is total sentence will be 15 months’ imprisonment.

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

Mr James H M McGowan leading Ms Charlotte Kong, instructed by Wong & Co, for the appellant