The Queen v. Tang Wing Sum

HCMA001665/1988

1988, No. 1665

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H E A D N O T E

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Managing vice establishment - sentence - three to six months appropriate where no aggravating circumstances.

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BETWEEN

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Coram: Hon. Bewley, J. in Court

Date of hearing: 7 March 1989

Date of delivery of judgment: 7 March 1989

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J U D G M E N T

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1. The appellant was convicted on 17th November, 1988, by Mr Andree Wiltens in North Kowloon Magistrates Court, of managing a vice establishment, contrary to Section 139(b) of the Crimes Ordinance, Cap. 200, and was sentenced to 12 months imprisonment and fined $20,000. He was also ordered to pay $5,000 costs. Having abandoned his appeal against conviction, he now appeals against sentence only.

2. Recent decisions of this court indicate that in cases of this kind, where no aggravating features exist and where the defendant is a first offender, the proper sentence is in the range of three to six months. See R. v. Leung Lim Man & Anothers M.A. 214/85, R. v. Chang Mu Hua & Others M.A. 1172/88 and R. v. Kwan Wah Sang M.A. 1324/88. That is conceded by counsel for the Crown.

3. This was a medium-sized establishment operated by a staff of three. No young girls were involved. The appellant had been employed there for only two months and earned $150 per day.

4. Although this was his second conviction, the first conviction was subsequent to the date of this offence. The magistrate was therefore correct in not activating the suspended sentence that was passed on the occasion of his first conviction.

5. The appellant has been in custody for nearly five months and I therefore reduce the sentence to such term as will allow his immediate release.

6. In his Reasons for sentence the magistrate said :-

"It is well known that the bail money in this type of case is put up for defendant by the organisations who set up and finance the ventures. I see no reason at all to return any of their money so they can use that for further unlawful activities."

7. The first sentence is probably true but does not justify the second. The purpose of bail is to ensure a defendant's attendance at his trial. Bail money should not be used to penalise persons not convicted of the offence.

8. There is no evidence that the appellant shared in the profits of the establishment. The fine was therefore wrong in principle and is set aside.

9. The appeal is allowed accordingly.

Representation:

Mr T.H. Casewell, Senior Crown Counsel, for Respondent

Mr Wilson Chan, assigned by D.L.A., for Appellant (Re sentence)

Appellant in person (Re conviction)