Ho Yuk-lan and Another v. The Queen

CACC000445/1979

Coram: Roberts, C.J., Trainor & Garcia, JJ.

Date of Judgment: 20 August 1979

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JUDGMENT

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Roberts, C.J.:

Introduction

1. The first appellant, HO Yuk-lan, was the first defendant before the magistrate at North Kowloon. She was charged with keeping premises as a vice establishment. The second defendant, HUI Bing-kin, was charged with being a tenant permitting premises to be kept as a vice establishment.

2. Both pleaded guilty and the magistrate imposed sentences of three months' imprisonment and a fine of $3,000 on each of them. Both defendants appealed against sentence to the High Court. The matter came before Mr. Justice Zimmern who, on the 25th May, 1979 allowed the appeal of the second defendant and substituted, for the latter's sentence of three months' imprisonment and a fine of $3,000, a fine of $8,000.

3. In relation to the first appellant, however, the judge referred the matter to this court to determine whether the magistrate had given the wrong weight to the previous record of the first appellant.

Facts

4. The first appellant paid rent for premises at 125 Sai Yee Street, Kowloon to the second defendant. In those premises she operated an escort company from December 1978 onwards.

5. The escort company was, in reality a call girl business. When a girl had been introduced to her customer, through the escort service, the couple would visit the Kai Yan Apartment House, which was under the control of the second defendant, and was in the building next door to the premises of the escort services. The apartment house provided rooms in which acts of prostitution occurred.

6. The first appellant received from each of the prostitutes a substantial share of the charge which was made by the girl to the customer. She was therefore properly charged, and convicted on her own plea, of the offence of keeping a vice establishment contrary to section 139(a) of the Crimes Ordinance.

Previous Convictions

7. The magistrate, in the statement of facts which he provided for the purpose of the appeal, stated-

"In the case, particularly, of the first defendant, her record showed her to be a persistent offender in this type of crime. Fines were, clearly, no deterrent. A suspended sentence had been imposed on the first defendant, but after the date of the present offence."

8. We were referred to a decision of Mr. Justice Trainor in the case of LIU Shuk Han v. The Queen⁽¹⁾. In that appeal, in which the facts were not dissimilar to those in the case before us to-day, the magistrate, when deciding on sentence, took into consideration the fact that the appellant had previously been convicted of keeping an unlicensed massage parlour.

9. In his reasons for the penalties which he imposed he commented that the previous conviction showed that she had a predisposition to become involved in "commercialized sexual activities". By reason of that, he said, he was prompted to impose the penalties which he did.

10. Mr. Justice Trainor decided that the magistrate was wrong in finding that the previous conviction of the appellant indicated a predisposition to commercialized sexual activities, on the ground that there is nothing wrong with keeping a massage parlour in Hong Kong, provided that it is licensed. (It was for keeping an unlicensed massage parlour that the appellant was previously convicted).

11. In our view, this is the proper approach. Where there is a conviction for operating an unlicensed massage establishment, it must not be inferred that it must have been a vice establishment or to have been conducted for the purposes of prostitution. If that is the Crown's case, they should proceed against the accused under the appropriate section of the Crimes Ordinance.

12. The record of the appellant contains four previous convictions. I am ignoring the last one, which took place after this offence. Three were for aiding and abetting in keeping an unlicensed massage establishment and one for aiding and abetting in keeping a brothel.

13. On the face of it, the offence of aiding and abetting in keeping a brothel is a serious one, but we are given to understand, (and this is not challenged by the Crown) that the appellant was not involved in any way in the management of a brothel but was convicted and fined because she was acting as a prostitute in the brother at the time. The smallness of the fine ($200) supports this.

14. It is not easy to assess the sentence which the magistrate would have imposed upon the appellant if he had not given what we consider to be the wrong weight to her previous record. It may very well be that he would still have come to the conclusion that an immediate custodial sentence was appropriate, and we would not have felt able to say that he would have been wrong in principle to have done so.

15. However, he did not have before him the benefit of the information which has been provided to us to-day by Mr. Hoo, as to the efforts of the appellant to find a respectable alternative source of income since the closing down of the vice establishment in January of this year.

16. We have been told that she has been working both as a part-time amah to two families and as a cleaner in a furniture shop; and that she is earning about $1,600 per month. It has also been urged upon us that a sentence of imprisonment would cause substantial hardship to her children, aged 11 and 9, of whom she has had custody since her divorce in 1974.

17. We have come to the conclusion that we could properly substitute, for the sentence imposed by the magistrate, a sentence of three months' imprisonment suspended for twelve months. To this extent, therefore, the first appellant's appeal succeeds. The fine will remain the same, that is to say $3,000.

Representation:

Alan Hoo (Hampton, Winter & Glynn) for 1st appellant

Murphy for the Crown/Respondent

(1) Crim. App. 1287/77.