The Queen v. Ma Kam-hon

CACC000030/1988

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BETWEEN

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Coram: Hon. Fuad V-P., Hunter, J. and Macdougall J.

Date of Hearing: 23rd June 1988

Date of Delivery of Judgment: 23rd June 1988

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J U D G M E N T

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Macdougall J:

1. The applicant who is 21½ years, of age pleaded guilty in the District, Court both to a charge of living, on the earnings of prostitution contrary, to S.137(1) of the Crimes Ordinance, and to a charge of assault occasioning actual bodily harm.

2. The agreed facts were that the victim, of both offences was the applicant's girl friend. In May 1987, he told her that he was short of money and asked her to work as a prostitute to earn some for him. The victim consented to do so, and for a period of 2 to 3 months she carried out his wishes and earned $150 from each customer. On each occasion, she could hand over the entire sum to the applicant who would return $30 to $40 to her after expenses had been covered. At the end of the period the victim refused to continue with this type of existence and began to work as a clerk. Towards the end of August the applicant visited her at her office where a dispute occurred during which the applicant struck her over the right eye causing bruising This was the subject of the assault charge.

3. In 1982 when aged sixteen, the applicant was convicted of robbery and was sentenced to be detained in a Training Centre from which he was released in June 1984 under supervision. Prior to the expiration of his supervision period, he was convicted by His Honour Judge Roy on a charge of exercising control over a woman for the purpose of prostitution, and was sent back to a Training Centre. It was during the period in which he was on bail pending the determination of that charge that he committed the present offence of assault occasioning actual bodily harm. The offence of living on the earnings of prostitution then came to light.

4. In order to assist him in deciding how to deal with the applicant in respect of these two offences, Judge Wong called for the usual Probation and Correctional Services Department reports. The probation report was unfavourable Because the applicant had previously failed to respond to institutional training combined with probation supervision and was now serving a second period of detention in a Training Centre, probation supervision was not recommended.

5. Judge Wong took the view that if he ordered the applicant to be detained in a Training Centre in respect of these offences, the result would be that he would escape the punishment he deserved for his criminal conduct. However, as the applicant was over 21, the Judge concluded that he was ineligible for a new term of detention in a Training Centre and that a sentence of 12 months imprisonment on the living on the earnings of prostitution charge,and a consecutive sentence of 1 month imprisonment on the assault charge were appropriate.

6. After these sentences had been passed, a request was made to the Judge by the applicant's solicitor to increase them to a period of two years so that the applicant would not be required to return to the Training Centre. The Judge declined to do so, stating that it would not be right for him to increase a "sentence simply to suit the convenience of a defendant. The applicant now applies for leave to appeal against the sentence of 12 months imposed in respect of the charge of living on the earnings of prostitution.

7. The principal ground advanced in support of the application is that it was wrong to pass an immediate custodial sentence and that instead the Judge should have imposed either a fine or a suspended sentence of imprisonment, or both, so as to enable the applicant to continue serving his, period of detention at the Training Centre without interruption.

8. When the matter came on for hearing before another division of this Court on the 17th May, this year, it was adjourned to a date to be fixed in order to obtain the view of the Commissioner of Correctional Services as to the suitability of the applicant for further training after he had served his prison sentence. The Commissioner has now given his views. He is of the opinion that the applicant is suitable for and would profit from continued training in the Training Centre after the completion of the present sentence Mr. Murray who appeared on behalf of the applicant, accepted that because the applicant is over 21 years of age he is not eligible for a further sentence of detention in a Training Centre in respect of the present offences.

9. However, the main thrust of Mr. Murray's submission was that a sentence of imprisonment would be counter-productive in that it would break the continuity of the applicant's present regimen of training in Training Centre. In the light of the Commissioner's latest report we do not accept that this would be so Moreover, section 5A of the Training Centreg Ordinance provides that where a person who is serving a sentence of detention in a Training Centre is sentenced to a term of imprisonment of 2 years or less, not being a suspended sentence, the sentence of detention shall be suspended until the expiration of the term of imprisonment Clearly the legislature envisages that there are circumstances in which it is appropriate to adopt this method of dealing with an offender

10. With all respect to Mr. Murray, we do not consider that the imposition of a fine or a suspended sentence of imprisonment were practical alternatives for the Judge to consider. It is difficult to conceive of circumstances in which it would be appropriate to impose a fine on a person undergoing detention in a Training, Centre and particularly so in a case, such as the present one, where the applicant has admitted having sent the victim out to work as a prostitute because he was an employed and in need of money. Equally, we are unable to see that any useful purpose could have been achieved by imposing a suspended sentence of imprisonment on a young man who had only recently begun to serve his period of detention in a Training Centre.

11. An alternative submission was that the sentence of 12 months imprisonment an offence of living on the earnings of, prostitution was manifestly excessive. Mr. Murray sought to draw support for this contention from sentences imposed for the same offence in three previous cases. He do not gain any assistance from these cases, the circumstances of which are different from those of the case before us. We also note that the maximum sentence for this offence has been increased to five years imprisonment. In our view, the sentence imposed by the Judge was by no means excessive The, application for leave to appeal is therefore refused.

Representation:

Mr. M. Hartmann C.C. for Crown Prosecutor.

Mr. Roderick Murray assigned by D.L.A. for the applicant.