The Queen v. Chan Wing Lung and Another

CACC000250/1991

BETWEEN

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Coram: Silke, V.-P., Kempster & Macdougall, JJ.A.

Date of Hearing: 23 August 1991

Date of Judgment: 23 August 1991

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the Court.

2. Chan Wing Lung was the 3rd named defendant and Chan Wing Tat, the 4th named defendant in a charge sheet which, in total, named five defendants. The charges themselves amounted to 19 and were divided variously between those named defendants and all related to dealing in prostitutes.

3. D1, Chong Yue Hang, had pleaded not guilty to five of the charges, one of which was trafficking in women, and after trial was convicted on all. D2, Siu Kin Wai, had absconded before trial. D3, Chan Wing Lung, had originally faced three charges, two of controlling women and one of living on the earnings of prostitution. He pleaded guilty to the 11th charge which was that of living on the earnings of prostitution and the other two charges were not then proceeded with. D4, Chan Wing Tat, also faced three similar charges and he also pleaded guilty to charge 14 which is living on the earnings of prostitution and the other charges laid against him were not proceeded with. The same two girls, Karen Margaret Hirst and Josefina Constance Giardina, were concerned in each of the charges. The period of the charge was the same in both cases, between 19th June and 17th September 1990. D3 and D4 were sentenced subsequent to the trial of D1 and they each received a period of 8 months imprisonment. They are brothers.

4. In relation to the actual period stated in the charges, that period spanned the whole of the criminality in relation to these girls in which the two applicants, who now seek leave to appeal against the sentences passed upon them, were concerned for a much shorter period. In both their Probation Reports it is suggested that the period was approximately one week.

5. They had met the two girls at a disco and, because the girls had told them that they were making no money from their work for the other persons who were running them as prostitutes, the two applicants decided to help the girls prostitute themselves. The girls subsequently serviced approximately ten customers per night and in the early hours of the morning in a restaurant they were each paid $200 per customer by D3 and D4. We are unaware of the precise amount that accrued to D3 and D4 themselves during this period but it must have been a sum of some substance despite the reference to $10 per customer in the Probation Reports. Both girls, we should add, were over 21, both had originally come from England at the behest of other defendants.

6. Mr. Tolliday-Wright, who appears for the applicants in this court, has submitted to us that the sentences are excessive in that they are out of line with the general run of sentences passed in cases of this nature. He suggests that the trial judge's starting point of 12 months was too high. He has referred us to a number of authorities both reported and unreported, one of them being The Queen v. Tam Yiu Kwong [1989] 1 HKLR 190. In the course of the hearing of the appeal in that case, which was against a sentence of 18 months for the offence of living on the earnings of prostitution and where the prostitute was under the age of 16, the court had been provided with a table showing the line of sentences imposed in the Magistracy where this offence is normally tried. That showed that in the first quarter of 1987 and the first quarter of 1988 the range of sentences was from 13 to 18 months, the most common being between 3 and 6 months imprisonment.

7. It is accepted that the proper sentence here is an immediate custodial sentence.

We have also been referred to The Queen v. Yau Chi Keung which is Magisterial Appeal No. 1597 of 1989 and to The Queen v. Siu Wai Yin, Magisterial Appeal No.956 of 1989, both of which related to this type of offence. It is clear from these authorities that there is no express tariff and each case depends very much on its own facts in respect of the sentence to be imposed.

8. Here there was a deliberate course of conduct. Whatever the form of assistance the applicants may have thought they were giving to these two girls it was an illegal course of conduct. We accept that there were no particularly aggravating circumstances - that is no underage girls, no violence - but the trial judge was the person who had the benefit both of hearing the evidence in the matter in relation to D1, which would have given him the overall picture, and of the agreed statement of facts relating to both D3 and D4. He had procured Probation Officer Reports to provide him with background knowledge before proceeding to sentence.

9. There being no particular tariff, it is very much within the discretion of a trial judge as to the quantum of the sentence he imposes. While sentences of 8 months in these particular cases may have been on the high side we do not feel that it would be proper for us to interfere with it, and consequentially, to interfere with the exercise of the trial judge's discretion. In those circumstances, the applications for leave to appeal against sentence will be refused.

Representation:

David Tolliday-Wright, Esq. (D.L.A.) for Applicants

S.R. Bailey, Esq. for Crown/Respondent