The Queen v. Siu Wai Yin

HCMA000956A/1989

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No. 956 of 1989

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BETWEEN

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Coram: The Hon, Mr. Justice Barnes in Court

Date of Hearing: 5 & 6 September 1989

Date of Judgment on Appeal Against Sentence: 6 September 1989

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J U D G M E N T

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1. The appellant was sentenced to imprisonment for 6 months in respect of each of two convictions on charges alleging living on the earnings of prostitution. In addition he was also ordered to pay an amount by way of fine and costs. He now appeals against the order in so far as it relates to the custodial sentences.

2. During the course of Mr. Cheng Huan's submissions, a number of cases have been brought to my attention, in particular, Magistracy Appeal No. 21/88 in which de Basto, J., noted that there was a wide range of sentences for offences involving the use of premises for the purpose of prostitution.

3. In that case, de Basto, J., reduced a sentence of 6 months to 3 months in respect of an offence of managing a vice-establishment.

4. This appellant, however, has been convicted of the offence of living on the earnings of prostitution, an offence for which the sentence is almost always an immediate custodial sentence. If the offence involves coercion by the pimp the sentence imposed is at the upper end of the range.

5. In this case, there are none of those unsavoury features which are usually present where a pimp is completely controlling the prostitute. Additionally, these were not young but experienced girls. The extent of the appellant's control of them was limited to the role of an usher who selected them from their waiting room and then escorted them to the clients they were to entertain.

6. Consequently, the appropriate sentence in his case should be at the lower end of the scale.

7. The learned magistrate imposed sentences of 6 months imprisonment. I find myself unable to say that those sentences were either manifestly excessive or wrong in principle. Consequently I can find no basis on which I could interfere.

8. The appellant's counsel Mr. Cheng Huan has made an impassioned plea to me to reduce the sentences as an act of mercy. He has referred to the personal circumstances of the appellant, has pointed out that he no longer works for the establishment but has obtained a job in a respectable business organisation, has made arrangements to go to Canada and is about to marry.

9. I feel that I cannot accede to this request. The case must be extremely rare where a person convicted of this type of objectionable offence can succeed with a plea of mercy. I reject the plea and dismiss the appeals.

Representation:

Mr. Cheng Huan QC leading Mr. Bernard Chung inst. by Yaddy Cheung & Co. for appellant.

Mr. Steve Chui, Sr C.C. for Crown/Resp.