HKSAR v. Lam Yin Har

HCMA 818/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 818 OF 2003

(ON APPEAL FROM NKCC 3736/2003)

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Coram: Hon Beeson J in Court

Date of Hearing: 24 September 2003

Date of Judgment: 24 September 2003

Date of Handing Down Reasons for Judgment: 10 October 2003

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REASONS FOR JUDGMENT

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1.The Appellant pleaded guilty in the Magistracy to two charges of being a tenant permitting premises to be kept as a vice establishment, contrary to section 144(1)(a) of the Crimes Ordinance, Cap. 200, which were charges 5 and 6 on the information, and one charge of living on the earnings of prostitution of others, contrary to section 137 of the Crimes Ordinance, Cap. 200, which was charge 7.

2.The Appellant was sentenced to 4 months' imprisonment for each of charges 5 and 6 and 6 months for charge 7, all to be concurrent, thus making a total of 6 months' imprisonment.

3.The Appellant applied for a review of sentence. The Magistrate, having been referred to R v. Chong Yuen HCMA 1319/1996 and HKSAR v. Ng Tsz Fung (unreported) HCMA 800/98, agreed that the 9 months' starting point he had taken on charge 7 was too high. He then reduced the sentence on charge 7 from 6 months' to 4 months' imprisonment and ordered that 2 months of the term for charge 7 should run consecutively to the sentences on charges 5 and 6. As a result, the total sentence remained 6 months' imprisonment. The Appellant appeals against sentence.

Brief Facts

4.Over a period of 3 months in 2002, the police mounted undercover operations against suspected vice establishments. In four operations, prostitution services were arranged at the premises listed in charge 5; in the last three operations, clients were greeted at the location in charge 5 then taken to the address in charge 6 where sexual services were offered. Exhibits demonstrating that the places were kept as vice establishments were ultimately seized from each location.

5.The Appellant was the signatory of the tenancy agreements for both locations at the relevant periods.

6.Under caution, the Appellant admitted that she was a "Mafu", who took the girls to vice establishments upon receiving a telephone call. She earned $20 or $40 commission for each girl she took to the establishments.

7.The Appellant was identified, by a mainlander who had worked as a prostitute at the location in charge 7, as the person who brought girls to that address, where they offered sexual services to customers. She saw the Appellant collect money after the girls had provided sexual services. She saw the Appellant every day, from the time she started working in late March 2002, until her own arrest on 7 May 2002.

8.The first ground of appeal was that the Deputy Magistrate had erred in giving excessive weight to the need to secure sentencing parity between the Appellant and other defendants who had been sentenced by a different magistrate before the Appellant was dealt with, when the other defendants had been convicted of offences which were different and more serious.

9.Alternatively, it was submitted that the Deputy Magistrate failed to properly apportion blame amongst the defendants when he sentenced the Appellant to the same term of imprisonment as D1 and D2, who were charged as keepers of a vice establishment.

10.The second ground was that when review proceedings concluded the Deputy Magistrate breached natural justice by reviewing and reversing his own earlier finding that as all three charges arose out of the same facts the sentences should be concurrent, but failed to allow counsel to make representations before he did so.

11.The third ground was that the Deputy Magistrate was wrong in ordering the amended sentence on charge 7 to be served partially consecutively with the sentences on charges 5 and 6, when the three charges should be seen as arising from one indistinguishable course of criminal conduct.

12.In respect of ground 1, it is clear that the Deputy Magistrate did consider the question of parity and although the Appellant's status was referred to as being "only the tenant" in charges 5 and 6, he considered her role was as culpable as those of D1 and D2 who were convicted as keepers.

13.It is important to note that it is the individual who is sentenced in cases such as this, given that there are no tariff sentences, although some guidelines exist. That somebody is a keeper of a vice establishment, for instance, does not make that person necessarily more culpable than a person who manages the establishment; it depends on the specific facts of the case. Here, the Appellant was not simply a tenant, but was involved in the running of the vice establishments operating in the premises. She was a regular attendant at the premises in charge 7. The Magistrate was justified in sentencing her to the same punishment as the 1st and 2nd Defendants.

14.As for grounds two and three, when the review hearing concluded, the Deputy Magistrate agreed that the Appellant should be sentenced to 6 months' imprisonment, because he found himself to have erred in the way he calculated sentence, although not on the total sentence passed. As she was a tenant of two premises for two separate terms, the Deputy Magistrate considered she was not just a "Mafu" as she claimed.

15.The Magistrate explained his ordering a partially consecutive sentence on Charge 7 as it referred to a different location and focused on the living on the earnings aspect, rather than the claimed role of "Mafu" and therefore it was not fitting that charge 7 be totally concurrent with charges 5 and 6.

16.In sentencing on 10 July 2002 (at B33), the Magistrate had stated that all three offences arose from the same course of conduct and that was his reason for ordering concurrent sentences. It may well be that he could justify in ordering a partially consecutive sentence because of the different nature of charge 7 and the different culpability attaching to it.

17.However, having adopted the review procedure, he should at least have asked counsel to submit reasons why the sentence should not be totally concurrent, if he proposed adjusting it. Defence counsel, no doubt, was relying on the finding as to course of conduct made by the Magistrate at the conclusion of trial and it would have come as a complete surprise to find the Magistrate was altering the basis of the sentence. That is not to say that the Magistrate had no power to do so, or that it was improper to do so, but it is obviously unjust to change the basis of, or change a finding that is the basis for, the original concurrent sentence without hearing the person(s) affected.

18.For this reason, I allow the appeal to the extent of ordering that charge 7 remains in its amended form of 4 months and that it runs concurrently with the sentences on charges 5 and 6.

Representation:

Ms Rosaline S Y Leung, SGC of Department of Justice, for the Respondent

Mr Edwin Choy, instructed by Messrs Haldanes, for the Appellant