The Queen v. Chu Lin-sing and Another

CACC000446/1987

BETWEEN

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Coram: Hon. Silke, V.-P., Barker, J.A. & Jones, J.

Date of Hearing: 23rd March 1988

Date of Judgment: 23rd March 1988

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J U D G M E N T

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Silke, V.-P:.

1. These are applications-for leave to appeal against sentence. In No.446 of 1987 MOK Wing-chung, aged 34, was the fifth named defendant on a charge sheet containing 6 counts relating to offences concerning prostitutes. He was convicted on his own plea of managing a vice establishment and sentenced on 4th September 1987 to two years' imprisonment. Other counts concerning him were not proceeded with.

2. In No.509 of 1986 CHU Lin-sing, aged 21, was convicted on two counts, the 1st and the 4th, of unlawful sexual intercourse with a girl under the-age of 16, and of a further count, count 5, causing the prostitution of a woman. He pleaded guilty in the course of the trial and was sentenced to three months' imprisonment concurrent on the first two counts and 2½ years consecutive to the first two on the third count, a total of two years and nine months.

3. Mok, the 2nd defendant in 509, was convicted on counts 2 and the 6, of unlawful sexual. intercourse with a girl under 16, on count 3 exercising control over prostitute and on count 7 living on the earnings of a prostitute and was sentenced on 29th September 1987 to a total of 4½ years imprisonment. He had also pleaded guilty in the course of the trial.

4. We accept that Mok's plea came about as the result of Chu's plea of guilty and of Chu's offer to give evidence for the Crown, an offer which was accepted but, because of Mok's plea, was not put into effect. Both trials were in the District: Court,

5. The facts are distressingly familiar. Mok was the tenant of premises at Granville Road, Kowloon which he ran as a brothel. Underaged girls, some as young as 14, went there at his invitation for the purpose of prostitution. It appeared that no violence or coercion was used. The offences in 509 took place in connection with the same premises. A 15-year-old girl, whom the. judge described as "naive", was friendly with Chu. She had sex with him. She was persuaded by him, he was in financial difficulties, to enter into the life of a prostitute. On her first "business" occasion he drugged her and when she woke up, clearly, suffering from the effects, he persuaded her to have sex with a man she found in bed with her. After that she had further "business" encounters with men. Mok also had sex with her, used her as his prostitute and lived on the earnings she received from her acts.

6. Dealing first with Chu. Mr. Souyave, who appeared, both here and below, submits with some force that no discount was given co him for his plea and that his offer of assistance to the police was not taken into account by the sentencing judge. He says further that the sentencing judge's starting point was too high.

7. In his reasons for sentence having stated that he gave no discount for the plea, His Honour Judge Sanders acknowledged that he had not taken into account the offer to give evidence. He clearly was under a misapprehension in respect of this at the time he passed the sentences he did.

8. Mr. Souyave and Mr. Cross, who appears for the Crown, have both helpfully directed our attention to a number of authorities on sentencing in circumstances are such as this. Some, while they are not directly in point, do assist us in considering the general line which is taken by the courts. That in point is The Attorney General v. CHAN Sham-fu ⁽¹⁾.

9. Courts accept the general principle that a plea, which avoids unnecessary expense, the giving of evidence by witnesses and waste of time, is given credit for when a sentence is passed. How much credit is a matter of degree. Further, where a defendant is of some assistance to the prosecution and to the police then some credit should also be given to him for that. In the light of Chan⁽¹⁾, of the two factors to which we have just referred and taking into consideration Chu's clear record and that which have been urged upon us by Mr. Souyave on his behalf, we think that a proper sentence overall in his case should be one of 2 years' imprisonment. We grant leave; treat the hearing as the hearing of the appeal and allow the appeal to this extent; the sentence on count 5 is reduced to one of 2 years' imprisonment. We direct that it run concurrently with the sentences on the other two counts.

10. In respect of Mok, Mr. Macrae takes two points on his behalf. First, that in sentencing him to 6 months imprisonment in contra-distinction to the 3 months imposed on Chu for similar offences of sex with underaged girls, the judge created a disparity of which Mok can legitimately complain. The second, and this is really the gravamen of the application, is that in directing that the totality of 4½ years should run consecutively to the 2 years imposed in 446, thus achieving a totality of 6½ years, the judge passed a sentence which overall was manifestly excessive the totality principle.

11. Mr. Macrae does not shy away from the fact that the second series of offences were committed while Mok was on bail pending trial for the first offence, nor that Mok has a bad criminal record; though he has no previous convictions for like offences. We do not think the first point to have substance. Mok was a man much older than Chu and Chu at least had a relationship with the girl which Mok had not.

12. The second point, however, has substance. For some reason which is not clear to us, judges of the District Court are denied the benefit of section 68 of the Criminal Procedure Ordinance. Therefore, in the cases such as these, the judge is forced to trim the totality of the sentence in the matter which he is then considering so as, by making the sentences run consecutively as it is right he should do, not to create a sentence which in total is wrong. We think here that, while the individual sentences are not of themselves to be interfered with, the totality of 6½ years is.

13. In our judgment, to properly reflect the serious nature of these charges, the background of Mok himself and the fact that the girl was underage, a sentence overall in a total of 5½ years would be proper. To effect this, we reduce the sentence on count 3 to one of 3 years, make it concurrent with the 2 years passed on the count 7. Those sentences to be consecutive to the sentences of six months on count 2 and 6 and each which of themselves are concurrent. That would achieve the desired totality. Therefore, the application of Mok in 446 is refused and in 509 we grant leave, allow the appeal and alter the sentences as indicated.

(1) App. for Rev. 18 of 1985

Representation:

Mr. A.A. Souyave (D.L.A.) for D1.

Mr. A. Macrae (C.W. Leung & Co.) for D2.

Mr. I.G. Cross for Crown/Respondent.