Ho Chun-hing v. The Queen

CACC000523/1972

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 523 OF 1972

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Coram: Rigby, C.J.

Date of Judgment: 11th August, 1972.

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JUDGMENT

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1. The appellant is 21 years of age. He pleaded guilty to two charges preferred against him: one of procuring a female to become a common prostitute and the other of living on the earnings of that female after he had procured her so to become a prostitute. He was sentenced to 12 months' imprisonment on each charge, such sentences to run consecutively, and he now appeals against the totality of his sentences on the grounds that it is too severe.

2. The facts of the case as presented before the magistrate were briefly as follows. The appellant and the female in question were both residents of the same resettlement estate at Chai Wan. It would appear that one evening in the month of April 1971, the girl, who was then between 18 and 19 years of age, was walking alone outside one of the blocks of this resettlement estate when she was accosted and stopped by four youths. It is said that the four youths then told her that she should choose one of them as a lover and they took her to a nearby hillside. The appellant then apparently approached and told the youths that he was her boyfriend, whereupon they let her go and they left. The appellant then apparently prevailed upon the girl to spend the night with him and they stayed the night in a hut on the hillside.

3. The next day the appellant told her that he would find her employment and took her to his mother's home in Kowloon where they again stayed the night together and apparently continued to stay at the mother's home. No suggestion is made that at any time the girl protested against living with the appellant at his mother's home or complained to anyone or even sought to return to her own home.

4. Some time in Way the appellant told the girl that he was in debt and asked her if she would help him to pay his debts. She agreed to do so and it would then appear that the appellant took the girl to a call-girl establishment where she was prevailed upon to sign some form of written agreement in consideration of which the appellant himself received $1,000 in cash. That payment was apparently as an advance made to him against the girl's earnings. It was clear that the girl was to work in a call-girl establishment. It is said that the girl herself had no idea what she was signing and was totally unaware of the implications of the agreement. For my part, having regard to the length of time the girl had already lived with this young man, I find it extremely difficult to believe that she did not know the nature of the agreement to which she was committing herself and the life she was to lead. Thereafter, the girl continued to work as a call-girl for some time.

5. It is said that she then escaped from the control of the appellant and went to stay with a friend at Lantao. She did so escape on the 10th of August. It is significant to observe that it was not until the 27th of April, just over 8 months later, that she thought fit to make any sort of complaint to the police. Her complaint to the police was recorded by a female police officer and, though almost incredible it appears to be true, the police officer did not, at the time of recording the complaint, ask her to explain the very lengthy delay in making any complaint at all. I am told that the explanation which she subsequently gave, and which again is not recorded upon the police file, is that she made no earlier complaint because of fear of the appellant.

6. Now, it would appear that the appellant himself was convicted in October, 1971, of the offence of affray and was sentenced to 9 months' imprisonment. Allowing for remission for good conduct he would have come out of prison some time in April 1972. The appellant complained, not entirely unreasonably, that this offence was committed by him before he was sent to prison for the offence of affray and it was only after he had been released from prison that he was again arrested and charged with this offence.

7. Whilst it is technically true to say that the offences of procuring a female to become a common prostitute and living on the earnings of prostitution by that female are separate and distinct offences, it is nevertheless equally true to say that there is a clear connection between the two offences. Where two offences are of a similar nature concurrent rather than consecutive sentences should be imposed.

8. The maximum penalty in respect of each of these charges is 2 years' imprisonment. In my view, in all the circumstances of this case, the sentences should run concurrently and not consecutively. The appeal will be allowed to that extent.

Representation:

Appellant in person.

Eric LI, S.C.C. for Crown/Respondent.

(Judgment delivered)