HKSAR v. Cheung Sin Sin and Another

DCCC 1085/2022

[2024] HKDC 255

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1085 OF 2022

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REASONS FOR SENTENCE

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Sentence of D1

1.D1 pleaded guilty to one charge of managing a vice establishment, contrary to section 139(1)(b)  of the Crimes Ordinance (“Charge 1”).

2.The summary of facts agreed by D1 revealed that on 7 January 2022, the police conducted a raid on the 1^st Floor, No. 6 Ichang Street, Tsim Sha Tsui, Kowloon (“the Premises”). The Premises comprised of a living room, a balcony with a toilet area, a store room and 6 rooms respectively labelled as room A, B, C, D, E and G. In each of the room, there was a bed or a massage bed and a shower area. Condoms, bottles of massage oil, bottles of lubricant and towels were found at the Premises.

3.The police found 3 females and 2 males at the Premises. D1, D3, Girl X and a 13 years old girl were amongst them.

4.D1 was arrested for operating a vice establishment. She said under caution that due to the epidemic, she had no income so she operated a vice establishment. D1 was further arrested for causing and encouraging underage prostitution. She said under caution that “the two girls inside the flat took the initiative to approach me, want to do prostitution work, so do work here, after they finish with the customers, I would receive $700, and if a hand-job is given, I would receive $400 as income.”

5.Girl X (who was born on 26 April 2006)  stated in her video recorded interviews that:

5.1On 7 January 2022 D1 told X that a customer was coming. D3 then arrived. X used room D to serve D3. Sexual intercourse took place between X and D3.

5.2X could not clearly confirm the exact number of times that she provided sexual services at the Premises. She recalled there was a customer who had received sexual services from her twice. On the 1^st occasion, she provided sexual services to him by only using her hands, which happened around a month ago. On the 2^nd occasion they had sexual intercourse, which happened around half a month ago.

5.3When X wanted to do work, she would tell D1 to find customers for her. D1 had a Telegram channel and would upload information onto this channel for finding customers. When D1 received messages from customers who wanted to make bookings, X would be informed by D1. Information about her height and photographs depicting girls who looked like her were uploaded. X's real photographs were not used. X's age was not shown.

5.4D1 took care of this establishment, watched the girls, and collected room fees from the girls.

5.5X received money from customers and from which she would pay a portion to D1 as room fees. The more money the girls received from their customers, the more money they would pay D1 as room fees.

5.6If D1 knew in advance the type of sexual services the customers wanted, D1 would tell the girls for the girls to decide whether or not they would serve the customers. If the customers did not mention this matter in advance, the customers would tell the girls when they meet the girls.

5.7X was not sure if D1 knew her age. X had never told D1 and D1 had never asked X about her age.

5.8There were other girls working there to provide sexual services, including 2 girls who are sisters called Flip and Flop. Some of the other girls were around 20 years old.

6.Girl Y (who was born on 22 January 2009)  stated in her video recorded interviews that:

6.1On 27 September 2021, a friend of Y called KK took Y to the Premises and told Y to work there. KK said that money could be earned by performing masturbation on male customers. Y entered room C at the Premises where there was a male. Y told him that she did not know what to do. The male said that he would teach her. Y was then forced by him into having sexual intercourse. The male gave Y $4,000. Y gave $300 or $700 to D1 as room fee.

6.2D1 was responsible for collecting money from the girls, doing advertisement on Telegram and making bookings with customers. D1 also tidied up towels used by the girls and the customers. D1 would make bookings with customers for Y and inform Y about the booking. Customers would pay Y in cash and Y would pay D1 money as room fees.

6.3Y did not tell D1 about her age, but believed D1 should know that she was under 18 by looking at her. D1 once asked if Y had reached 18. Y said no but did not tell D1 her exact age.

6.4Not every customer went to the Premises for sexual services. Some customers went there for only a massage.

6.5Y's nickname was “Flip” in the advertisement on Telegram done by D1. The advertisement content stated that Y would only perform masturbation on customers. The photographs used in the Telegram advertisement were not Y's real photographs.

6.6Y received money from customers, a portion of which would be paid to D1 as room fee.

6.7She had been working at the Premises between November and December 2021 and the last time she was there was 16 December 2021.

7.Girl Z (who was born on 23 November 2009)  stated in her video recorded interviews that:

7.1She performed masturbation on male customers at the Premises. The first time was in mid-October 2021 and the last time was towards the end of December 2021.

7.2From the money she received from customers, she would give a portion to D1.

7.3D1 found customers for the girls via Telegram. D1 was responsible for looking after the Premises, and ordering food for the girls. When there were customers, D1 would call Z and ask if she would do it.

7.4Z was not sure if D1 knew her age. She did not mention her age to D1.

8.D1 stated in her video recorded interview the following:

8.1She had worked at the Premises for slightly more than a year. At the beginning, she worked at the Premises by providing sexual services there, and then since around July 2021, she started living there and became responsible for collecting money from girls who provided sexual services at the Premises.

8.2She was permitted by her boyfriend (D2)  to live at the Premises. She did not pay rents to her boyfriend or to anyone else.

8.3The amount of money received by the girls depended on the type of sexual services these girls provided. The price to be paid by customers would be at least $1,000. It was up to $1,300 for giving a hand-job, up to $1,800 for giving oral sex and up to $3,000 for having sexual intercourse.

8.4After providing sexual services, the customers would pay the girls who would then give money to D1 as room fees. She received about $400 from girls who performed masturbation or oral sex, and received about $700 from girls who had sexual intercourse with customers.

8.5The monthly turnover of the business at the Premises was between $50,000 and $110,000. When the business was good, it had reached $110,000 per month, and when the business was at its worst, it was about $50,000 per month.

8.6Customers were found via Telegram. The Telegram channel was called “AV Channel SPA”. Photographs were uploaded onto this channel to attract customers.

8.7Customers would contact D1 who would send them the address of the Premises. D1 or the girls at the Premises would open the door for the customers. After arriving at the Premises, the customers would be told to take a shower and decide the type of sexual services they wanted.

8.8On 7 January 2022, Girl X and “Cha Yip” were at the Premises. Girl X was inside a room. D1 did not know what type of sexual services Girl X was providing at that time. Girl X said that she was 16 or 17 years old. D1 did not know what Cha Yip was doing. D1 did not know Cha Yip's age until she heard from the police that Cha Yip was 13 years old. Cha Yip looked mature. The 2 males who were at the Premises at the time of police entry were customers.

9.D1 admits that between 1 July 2021 and 7 January 2022, both dates inclusive, she managed the Premises, which was kept as a vice establishment.

D1’s Background and Mitigation

10.D1 was born in 1999, now aged 24. She graduated from secondary school in Hong Kong. After completion of her secondary school, she went on to read a beautician course, followed by becoming a beautician apprentice and then a formal beautician. She also took time to study massage, with a view of becoming a therapist one day.

11.Due to the epidemic, the company she was working at closed down and she lost her job. It was her urge to earn quick money that led her to commit the offence she faced.

12.Mr. Davies, who appeared for D1, urged this court to consider that the present case is not a sophisticated or large operation. It did not involve large number of prostitutes or customers. The profit earned was not particularly large. The duration of operation was not long.

13.Mr. Davies also submitted that there was no coercion or exploitation involved. The three girls in question (namely Girl X, Y & Z)  had voluntarily taken part in offering sexual services.

14.The defence readily admitted that the young age of the girls, especially that of Y and Z is an aggravating factor.

15.The defence prayed-in-aid the case of HKSAR v. LEE Tung Yau, HCMA 602/2001 in which a starting point of 12 months’ imprisonment was adopted for a case which involved the managing of a vice establishment concerning 8 illegal immigrants (aged between 17 to 20)  in providing sexual intercourse.

16.The defence also prayed-in-aid the decision in AG v. CHAN Shum Fu, CAAR 18/1985, a case which involved 5 girls (aged between 14 to15), providing sexual intercourse to customers. The Court of Appeal was of the view that a starting point of 18 months’ imprisonment was appropriate.

Sentence Consideration of D1

17.Insofar as the scale of the operation is concerned, the main source of information came from Girl X, Y & Z as well as the admission made by D1. Judging from their description of the provision of sexual services, the setting of the Premises and the usage of social media in contacting prostitutes and customers, I do not find the operation involved to be small, albeit I accept the defence submission that it was not a sophisticated operation nor one that generates huge amount of profit.

18.I also accept that the sexual services provided by the girls working at the Premises would not invariably involve sexual intercourse. In that regard, it was even suggested by Girl Y that some of the customers who went to the Premises for massage only.

19.I do accept that there was no coercion on the part of D1 insofar as the provision of sexual services by Girl X, Y & Z were concerned. However, the weight that can be placed on their voluntariness in providing such sexual services is limited, as the Court of Appeal pointed out in CHAN Shum-fu (supra)  (at p. 3 of the judgment)  :

“That the victims themselves volunteered for prostitution or were hardened prostitutes is not a factor that should weigh heavily in favour of the offender. The law is there to protect the young, the unwary, the ignorant, the innocent as well as the foolish. More often than not, the victims need to be protected in spite of what they think or do. In assessing sentences the judge needs to have regard to the protection of other young girls who might fall victim to prostitution as well as the prostitutes in the case before him.”

20.The young age of the girls, especially that of Girl Y and Z, is clearly an aggravating factor. I do however accept that the sexual services provided by the girls working at the Premises would not invariably involve sexual intercourse. To the extreme end it was even suggested by Girl Y that some of the customers who went to the Premises for massage only.

21.The prosecution drew my attention to the fact that the maximum penalty for the offence of “managing a vice establishment” was increased from 7 years to 10 years imprisonment in 1998.

22.Balancing all the factors in the case, I adopt a starting point of 22 months imprisonment for Charge 1.

23.D1 is entitled to a sentencing discount of one-third as a result of her guilty plea, bringing her sentence to one of 14 months. Apart from that I see no other factor which merits further discount.

24.For Charge 1, D1 is therefore sentenced to 14 months’ imprisonment.

Sentence of D3

25.D3 was convicted after trial for one charge of “unlawful sexual intercourse with a girl under the age of 16 years” [Charge (3)].

26.The relevant findings had been set out in the reasons for verdict and the same will not be repeated here. Suffice to say that it was found by this court that D3 did have sexual intercourse with Girl X (a girl who was 15 years and 8 months at the time)  on 7 January 2022 at the Premises.

D3’s Background and Mitigation

27.D3 was born in Hong Kong in 1990, now aged 33.

28.After completion of his Hong Kong Certificate of Education Examination in 2007, D3 went on to receive vocational training in private institutions. He was awarded a diploma in visual communication (multimedia)  given by the Hong Kong Communication Art Centre in September 2008. He then went on to complete two other programmes in web page design and diploma in IT system and network engineer in February 2009 and May 2009 respectively.

29.As regards his employment, D3 took up part-time design work for a health food company after he completed all his training when he was 19. Thereafter, he had worked for two interior design companies. He was working as a draftsman from September 2009 to June 2018, with a monthly salary of $10,500. As the company closed down, D3 changed to work for another interior design company from July 2018 till July 2023 receiving $16,500 per month. As the second design company shut down due to poor business, he chose to take up food delivery work on foot starting from September 2023. He now works from 11:30am to 8:30pm daily for two food delivery platforms.

30.Mr. Fung, who appeared for D3, submitted that D3 was seeking sexual services at the Premises. It was not a situation whereby Girl X was taken advantage of. There was no deception on the part of D3. To D3, Girl X was providing the services and he was the customer. Thus the effect of the 18 years age gap between them should be minimal.

31.Mr. Fung also submitted that D3 all along thought Girl X was over 16 years of age. The defence prayed-in-aid the relevant Telegram installed in the mobile phone seized from D1 concerning a post published on the Telegram channel “AV Channel SPA”: “Yau Yau and stunning Form 6 graduate with big eyes and long lashes…” [2^nd Admitted Facts (Exhibit P45)] as well as the testimony of Girl X which suggested that she told D3 that she had finished studying.

32.The defence urged this court to consider the option of   a Community Service Order.

33.The Suitability Report for Community Service Order revealed that D3 is considered to be a suitable person to perform work under a Community Service Order and recommended the same accordingly.  

Sentence Consideration of D3

34.The Court of Appeal in HKSAR v. TSANG Chiu Tak [2013] 1 HKLRD 427 stated factors needed to be taken into consideration in respect of cases of sexual assault on a child (at paragraph 9 of the judgment):

“(1)  The age difference between the defendant and the victim;

(2)  The relationship between the defendant and the victim, including

whether the defendant had taken advantage of his position or status to commit the offence and whether there was a breach of trust in the case;

(3)  Whether the defendant had used threats or inducements to make the victim succumb;

(4)  The number of occasions of committing the offences and the duration of the offences;

(5)  Whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;

(6)  Whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;

(7)  Whether the sexual abuses have caused physical or psychological trauma to the victim;

(8)  Whether the offences have impact on the family members of the

victim;

(9)  Whether the defendant was involved in other inappropriate behaviours such as inviting other people to watch or take photos or videos of the offence he committed; and

(10)  Whether the defendant is psychologically imbalanced and

paedophilic and the likelihood of re-offending.”

35.In the present case, the information gathered by D3 from social media as well as the reply he got from Girl X regarding her age did create a basis for D3 to believe that she was over 16. This court also had the opportunity to observe the appearance of Girl X from her video recorded interview taken on 8 January 2022 (one day after the commission of Charge 3). Suffice to say that she appeared to look like a 16 years-old girl or above.

36.D3’s belief of Girl X’s age, albeit a mistaken one, is a mitigating factor which this court has to take into account.

37.D3 went to the Premises to seek sexual services. There is no evidence to suggest that he was there for the exploitation of underage girl. The age difference between him and Girl X had been lessened by the fact that it was a sexual transaction between D3 and a girl, whom D3 believed to be over 16 years of age.

38.I bear in mind that D3 is a man of clear record.

39.The Prosecution drew the attention of this court that as D3 insisted in the Suitability Report for Community Service Order that he did not have sexual intercourse with Girl X, but only admitted to have touched her private part with his hands, there was therefore no genuine remorse on the part of D3. The Prosecution cited the case of Secretary for Justice v. WONG Chi Fung and Others [2018] 2 HKLRD 699.

40.The Prosecution fairly indicated that there are instances whereby a community service order was imposed without all six factors being present.

41.In view of the unique facets in which Charge 3 was committed, I find community service to be an appropriate form of punishment for D3.

42.I therefore sentence D3 to 180 hours of Community Service Order for Charge 3.