Attorney General v. Wong Shui-ying and Another

CAAR000006/1978

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Coram: Briggs, C.J., Huggins and Pickering, JJ.A.

Date of Judgment: 29th May 1978.

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JUDGMENT

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Huggins, J.A.:

1. It is urged upon us that we should not lightly interfere with the sentence passed by the learned judge, and that is true: we should dismiss the application unless satisfied that the sentence was wrong in principle or manifestly inadequate. For my part I have hesitated to say that a sentence of eight months' imprisonment suspended for eighteen months (and it seems that that was the sentence passed on all the charges except Charge 9, although the Application and other papers before us indicate that it was a sentence of six months' imprisonment) was manifestly inadequate. However wide in practice the gap between an immediate sentence and a suspended sentence of imprisonment, the law is that both are truly sentences of imprisonment. What is alleged here is that the learned judge in exercising his discretion whether or not to suspend the sentence has gone wrong in principle. I think that contention is valid, for the whole tenor of his reasons is, in his own words, that "there is a growing feeling in the community that the state should interfere less in these matters", i.e. in protecting women who have no desire to be protected. Whether such a feeling is in fact growing in Hong Kong it is difficult to say: the issue is one on which opinions notoriously differ and on which many persons are disposed to express one view in public and another in private. What is more important is that it is not the duty of the courts to assess the feelings of the community where the intention of the Legislature is clear. We must disregard the most recent legislation on the subject, because that was passed after these offences were committed. The fact remains that since 1897 the maximum penalty for such offences as these has been three times increased. An increase in the maximum penalty may not invariably indicate an intention that the general level of sentences should be increased: sometimes it is discovered that cases of unexpected gravity have been committed and that the range of available sentences is insufficient, but there is no reason to believe that that is the position here. Again, with respect to the learned judge I do not think "the gravamen of the offence in this case is that these two Defendants made a profit out of breaking the law", even though it was a considerable profit: the gravamen was the exercising of control over prostitutes and, thereby, encouraging prostitution. The enormous profit accruing to the Respondents was no doubt an aggravating factor.

2. We have been shown a list of sentences imposed by magistrates for comparable offences in the last twelve months and it appears that in all but the North Kowloon Magistracy the majority of cases attracted substantial fines without imprisonment. In the North Kowloon Magistracy it was last year common to impose a short period of imprisonment, either immediate or suspended, with a longer period of immediate imprisonment where young girls were involved, but more recently fines have been more common even there. I think that the former practice in North Kowloon would be the more appropriate norm.

3. In the present case the learned judge applied wrong principles but that does not necessarily mean that the sentence passed was wrong. I have had some doubts whether we would be justified in interfering, but the other members of the court think that an immediate custodial sentence ought to have been imposed and having regard to the length of the time covered by the charges and the huge profit being made by the Respondents I am not disposed to dissent from the granting of the Application. In the circumstances an immediate custodial sentence of four months' duration would have been proper. 

29th May 1978.

Representation: