The Queen v. Wong Wai-chiu and Another

CACC000308/1985

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Fuad, J.A. & Penlington, J.

Date of Hearing: 31st December 1985

Date of Judgment: 31st December 1985

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. These are applications for leave to appeal against sentences only. Applications for leave to appeal against conviction have been abandoned.

2. The 1st Applicant was convicted on one charge of managing a vice establishment and two charges of exercising control over a woman for the purpose of prostitution. On the lst charge he was sentenced to two years and a fine of $10,000 and on each of the other charges to imprisonment for one year, all those sentences to run concurrently.

3. The 2nd Applicant was convicted on similar charges except that the vice establishment charge was (under s.139 of the Crimes Ordinance)one of keeping a vice establishment. He was convicted of two offences of exercising control over a woman for the purpose of prostitution similar to the 1st Applicant but he also was convicted of living on the earnings of prostitution - 2 charges. The 2nd Applicant was sentenced to three years' imprisonment and a fine of $10,000 for the vice establishment offence and two years concurrent on each of the other four charges.

4. The learned judge held that in the present case the vice establishment charges were the main offences. This has been challenged on the basis that the sentences which are the maximum sentences which are prescribed by the Legislature are under s.139 of the Crimes Ordinance seven years as against fourteen years under s.130. Nevertheless we think that the learned judge was justified in the circumstances of the case in this case in coming to the conclusion that he did, and I shall refer in more detail to the reasons why we so think.

5. There was a raid on the 1st Applicant's flat in Granville Road. He was clearly running a brothel at those premises and he also had a call-girl service which he operated from there. The 2nd Applicant had a brothel in Cameron Road and kept two Philippinas, one of whom had come to Hong Kong to work expressly as a prostitute: the other indicated that she came to work at a nightclub and was persuaded to remain as a prostitute. Quite clearly both women worked in this capacity quite voluntarily. They were provided by the 2nd Applicant with accommodation. They had on various occasions gone to the premises of the 1st Applicant in the course of their profession, and that was the connection between these two Applicants.

6. The substance of the applications is that the sentences are substantially out of line with sentences passed in other cases of a similar nature. It is conceded that the judge was entitled to impose sentences of immediate imprisonment, but it is submitted that three to nine months' was the usual range. It is emphasized that in this case there was no question of any duress or of false imprisonment although it may be noted that the 2nd Applicant did keep the passport and return ticket of one of the women. There was here no depraving of the morals of young girls: these two women were aged 21 and 29. There was, it is submitted, no evidence of any increased incidence of offences of this nature. The contrary has been argued on behalf of the Crown but the fact remains that there was no evidence before the judge of any increase. We have properly been referred to a number of cases which are set out in a very useful schedule, but in our view that is not evidence which justifies our concluding that there has been an increase in the incidence of these offences.

7. Both Applicants have clear records. We think that the judge was justified in taking the view that the 2nd Applicant's offence was more serious. He encouraged at least one of the women to come to Hong Kong expressly for the purpose of prostitution. These sentences are, indeed, considerably above the majority of those imposed in the past and this fact was fully appreciated by the judge. We have been referred not only to the schedule which I have already mentioned but to a number of individual cases of which I shall mention only one: Reg. v FONG Yuk-choi 1983 Cr. App. No.819. That was a case which had certain similarities to the present in that women had come from Thailand and were being kept for the purpose of prostitution in Hong Kong. There a sentence of three and a half years was reduced to one of two years and another sentence was reduced to one of twenty months. This is the case found to have the highest sentences on record. We think that that case offers fair guidance to us in the present case and, having taken into account all that has been said on their behalf, we think that we should allow this application, treat this hearing as the hearing of the appeal, allow the appeals and substitute on the 1st Appellant a sentence of eighteen months' imprisonment on the first charge and on the 2nd Appellant a sentence of two years' imprisonment on the 13th charge - the fines which were imposed and the sentences on the other charges to stand.

31st December 1985

Representation:

I.G. Cross for Crown.

Albert Yau for 1st Appellant.

O'Reilly Mayne, Q.C. & R. Whitehead for 2nd Appellant.