Leung Lim Man and Another v. The Queen

HCMA000214/1985

BETWEEN

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Coram: The Honourable Mr. Justice Jones in Court

Date of hearing: 12 April 1985

Date of delivery of judgment: 15 April 1985

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JUDGMENT

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1. On the 25th January 1985 the 1st appellant was convicted by a magistrate at South Kowloon Magistracy of managing a vice establishment and the 2nd appellant was convicted of assisting in the management of a vice establishment, both offences being contrary to Section 139(b) of the Crimes Ordinance Cap. 200. The 1st appellant was sentenced to a term of imprisonment for 9 months with an order to pay costs of $2,000.00 and the 2nd appellant to 6 months imprisonment and to pay costs of $1,000.00.

2. The appellants have abandoned their appeals against conviction which therefore stand dismissed, but they both appeal against sentence. The maximum sentence for the offences on summary conviction is 2 years imprisonment and a fine of $20,000.00.

3. The facts reveal that a police officer posing as a customer went to the Tai Fong Night Club in Jordan Road on three occasions in November 1984 where he obtained sexual services provided by hostesses at an agreed cost. On the 15th November 1984 a police party visited the premises and issued a warning to the persons in charge and the employees about the premises being used as a vice establishment. The same police officer who visited the premises on the previous occasions went again on the 16th November 1984 with another police officer where they posed as customers and received similar sexual services that had been provided before to the first police officer at an agreed cost. On this occasion a police party raided the premises and arrested the two appellants and another person who was working at this establishment. The 1st appellant was arrested as the person in charge of the premises and the 2nd appellant was arrested as the cashier.

4. The 1st appellant is a single man aged 34. He has one previous conviction in 1969 for assault with intent to rob when he was sentenced to be placed on probation for 18 months. Before his arrest the 1st appellant had been working at the club for about one and a half months at a salary of $1,800.00 per month. He is now employed by a garment factory earning $2,000.00 per month. The 2nd appellant is a married man aged 37 with two children. He had worked at the club for less than one month before his arrest and was earning $1,600.00 per month. The 2nd appellant is now working as a mechanic in a video games centre at a salary of $1,600.00 per month. The 2nd appellant has no previous convictions.

5. Both appellants were in custody from the date of their conviction on the 25th January 1985 until they were released on bail on the 15th March 1985.

6. Mr. Hoo who appeared for the appellants submitted that the sentences imposed were both wrong in principle and manifestly excessive.

7. A chart was produced by Mr. Cross who represented the Crown which sets out details of sentences passed in cases of a similar nature at the South Kowloon Magistracy for offences committed in the district of Yaumati for the period from the 1st April 1984 to the 30th November 1984. Out of 29 cases of managing a vice establishment 13 resulted in an immediate custodial sentence with a maximum sentence of 9 months imprisonment. Other sentences for this particular offence included suspended sentences and the imposition of fines. In respect of the lesser offence of assisting no case out of 13 cases cited resulted in an immediate custodial sentence.

8. Mr. Hoo produced details of some vice establishment eases heard in the Causeway Bay Magistracy in 1984 where sentences for managing ranged from 2 months imprisonment suspended for 2 years and a fine of $2,500.00 to an immediate custodial sentence of 9 months imprisonment. For assisting, sentences varied from a fine of $2,500.00 to one of 2 months imprisonment.

9. In respect of managing the Court of Appeal in The Attorney- General v. Lee Chi-keung Review 3/1984 considered that where large profits are likely to be made by the illegal activity of the defendant the court should seriously consider whether an immediate custodial sentence is not appropriate.

10. In his statement of findings the magistrate said that he considered that an immediate custodial sentence is an appropriate sentence for this type of offence, but he gave no reasons why he came to that conclusion nor does he appear to have considered the individual circumstances of either of the two appellants. There was no evidence that there had been an increase in this type of offence in the Yaumati area to justify a deterrent sentence.

11. For offences of assisting the normal sentence for a first offender appears to be a short suspended sentence and or a fine. The sentence imposed on the 2nd appellant was therefore wrong in principle and manifestly excessive. His sentence will be varied to one of 3 months imprisonment suspended for 1 year. The order for costs will remain.

12. However I agree that an immediate custodial sentence for the 1st appellant was justified for there is evidence that the establishment was likely to earn large profits. Nevertheless taking into account the general range of sentences 9 months imprisonment is too long for a first offender for this type of offence. 3 months imprisonment would have been quite adequate in this case. However, having regard to all the circumstances including his period in custody no useful purpose would be served by the 1st appellant returning to prison for what would amount to a very short period. Accordingly his sentence will be varied by imposing a sentence of imprisonment that will enable him to be released immediately. The order for costs will not be disturbed.

Representation:

Mr. A. Hoo (Ronald Ho & Co.) for Appellants.

Mr. I.G. Cross (Legal Department) for Respondent.