HKSAR v. Yu Yin Ha

HCMA 696/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 696 OF 2006

(ON APPEAL FROM KTCC 351/2006)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 8 December 2006

Date of Judgment: 8 December 2006

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J U D G M E N T

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1.The Appellant was originally tried in the Magistrates’ Court and she was the 1^st Defendant in the case.  She had pleaded not guilty to the 1^st charge namely managing a vice establishment and after trial she was convicted of the charge, and she was sentenced to a term of imprisonment of 5 months.  She now appeals against both conviction and sentence.

2.The particulars of the charge was that on 4 November 2005 in Room 2 at the Silver Tseuk Karaoke Night Club, 1^st Floor, Mee Cheong Building, Nos. 141, 143 & 145 Portland Street, Kowloon, in Hong Kong she did manage the said place which was kept as a vice establishment.  This was not the original charge because it had been amended by the learned Magistrate.

3.The original particulars was that she managed the said premises i.e. the Silver Tseuk Night Club which was kept as a vice establishment without naming Room 2.  It was only after submissions by Mr Morley that the learned Magistrate  amended the particulars of the charge to read Room 2 and after further argument from Mr Morley that Room 2 cannot be considered as “premises”.  The learned Magistrate ultimately amended the particular of the charge to the “said place”, meaning Room 2, was being kept as a vice establishment.

4.The facts of the case were that two police officers attended the nightclub acting undercover.  They were served by the Appellant who arranged two girls to serve them and the two girls when brought into the room, not only engaged in lewd acts, but suggested to have sexual intercourse with the two police officers.  Subsequently the two police officers complained about the 2 girls and the Appellant then brought in 2 other girls, who did the same as their predecessors and also made the same suggestion.  Subsequently the place was raided by the police and the Appellant was arrested.

5.It was clear from the evidence of the prosecution that the premises was set up as karaoke lounge.  The actual room which these two officers were in was about 100 sq. ft. and there was a TV, a karaoke set and U-shaped sofa.  As Mr Morley pointed out, Room 2 had no paraphernalia suggesting any kind of vice was being conducted there.  However, the Appellant had introduced herself to the officers and explained the charges to them and also told the officers that these girls were good at sex and they could do it for $250.  The Night Club would provide rooms for them, and the officers would have to pay for the hotel charges if they brought the girls out.

6.Subsequently the first 2 girls were brought in and one of the officers was touched on his private parts and the other had the breast of the other girls pressed against him and both suggested sexual intercourse with the two officers.  Subsequently, another two girls came in as a result of the complaint of the two police officers.  They suggested the same thing and also committed lewd acts on these two police officers.

7.At the conclusion of the case, the defendant elected not to give evidence.  The learned Magistrate found that the prosecution witnesses were credible and reliable.  Mr Morley then made a submission on the law and basically his submission was: whether the place was being kept as a vice establishment required the proof of persistent user.  The learned Magistrate after hearing the submission then came to the conclusion after referring to the leading authority of R v Wong Chi Hung [1982] HKLR 362, that the prosecution could prove the place was being kept as a vice establishment by evidence of one visit if there were other circumstances allowing the inference to be drawn.  Mr Morley had submitted that there is no evidence to show how Room 2 had been used prior to the visit and there were no paraphernalia suggesting any persistent user but at the end of the day, the learned Magistrate at paragraph 28 of his Statement of Findings said this:

“A single visit may be sometime more probative than multiple visits.  In this case, there were 4 girls coming into Room 2.  2 sessions, each with 2 girls, each girl engaged in lewd acts and suggested having sex with these 2 prosecution witnesses.”

8.So the learned Magistrate decided that this pattern of behaviour was sufficient evidence of a persistent user.  The irresistible inference is that Room 2 was being kept as a vice establishment before and until the police raided.

9.The learned Magistrate ultimately then concluded that the Appellant had been proved guilty on that charge.

10.On appeal, Mr Morley again represented the Appellant and again Mr Morley submitted that the prosecution had failed to prove persistent user and also that there was no evidence to suggest the place was used prior to the police officers visit as a vice establishment.

11.Upon reading the case of Wong Chi Hung, (supra) the Court of Appeal said very clearly that the prosecution could prove the place was being kept as a vice establishment either by proving through surveillance evidence that the premises was being used and kept as such over a protracted period of time or on a single occasion when surrounding circumstances could give rise to that conclusion.

12.The learned Magistrate was well aware of Mr Morley’s submissions of lack of paraphernalia or evidence of persistent use.  However; he did find that from conduct of the girls i.e. the 4 girls who came to the room, the way they were brought in to the room, what happened during the visit of these 4 girls, that the only irresistible conclusion, he could draw was that this place was used as a vice establishment prior to and up to the raid by the police.

13.I cannot say that in the circumstances that he is wrong and I do not agree with Mr Morley’s submission that because of the lack of paraphernalia for vice activities and absence of document or books proving the place is a vice establishment prior to the visit by the police, the court cannot conclude from the surrounding circumstances that it had been used as such prior to the police’s visit.  I find that there is no merit in the appeal and so the appeal against conviction is dismissed.

14.I now deal with the appeal against sentence.

15.Mr Morley submitted that the sentence in this type of offence is wide ranging, it ranges from probation to terms of imprisonment, as Deputy High Court Judge Line in the case of Sung Kwong Ngai HCMA 1160 of 2004 had pointed out.  There are no guidelines and it is up to the sentencing judge in a particular case, looking at the surrounding circumstances and the facts in that case, to determine an acceptable sentence.

16.The learned Magistrate, in this case, in his Reasons for Sentence, does not identify any aggravating feature in this case.  From my reading of the facts, there does not seem to be any as would appear in other cases of this kind where underaged girls were used or prostitute from the Mainland were involved.  As far as the prevailing social condition is concerned, there does not seem to be an increase in this kind of activities and Ms Sin accepted that the police had said that it was under control in the Mongkok area.

17.The learned Magistrate after referring to the case of Chan Chun Por M.A.1053 of 2005 where a term of 6 months’ imprisonment was considered a proper starting point for a first offender.  At paragraph 7 of his Reasons for Sentence, the learned Magistrate had this to say:

“Her solicitor submitted that the present case was a small-scale operation.  I was aware, however, of the fact that 4 prostitutes were readily available almost immediately.  I adopted 5 months as the starting point.  There were no effective mitigating factors, I sentenced her to 5 months’ imprisonment.”

18.The learned Magistrate in this case adopted 5 months as the starting point but found no effective mitigating factors.  However, as Mr Morley correctly pointed out, this is a case where the Appellant had not disputed the facts in the case and she came to court having pleaded not guilty because, as the learned Magistrate found, the particulars of the offence could not be made out and that is why the learned Magistrate amended the charge and, after the amendment, the Appellant and those acting on her behalf did not seek to call further evidence.  Although I accept as Ms Sin pointed out, this is not a case where there were many documentation or complication in the evidence and so whether the Appellant agreed the facts or not, this is a very simple case.  Nevertheless, it is still a mitigating factor.  I think recognition should be given to a particular defendant who does not dispute the facts and thus save the court’s time and thus some allowances should be made for it as a mitigating factor.

19.I consider that the learned Magistrate was wrong to find that there were “no effective mitigating factors”.  He should have taken into account, the way the defence did not dispute the evidence as a mitigating factor and also in this case, the Appellant can be considered as effectively having a clear record.  She had been, in 1995 convicted of using a false instrument and she was sentenced to 6 months suspended for 2 years.  That was some 8 to 9 years ago, since then, she had not committed any other criminal offences.  It would appear from the background report called by the learned Magistrate that she had worked at various jobs and also a letter from her present employer was submitted showing that she had been working in an engineering company since May 2006 and he is still willing to employ her because he considered her work attitude to be good.  She is employed as a clerk in the engineering company. 

20.In view of the fact that in this case there was no aggravating feature, I consider that an appropriate sentence in view of the circumstances in this case that although 4 girls were called into the room, it would appear from the evidence it was not a major operation.  I am also aware of the fact that the owner was acquitted.  In the circumstances, I would consider that 3 months’ imprisonment would have been appropriate.

21.In considering the background of the Appellant and the fact that she has, as Mr Morley said, moved on and found herself a different job and is good at it.  The employer is willing to continue to employ her despite knowing of her conviction in this case.  I am willing to give her a chance.  I do consider that in view of her present employment that the chance of re-offending is therefore minimal.  I will suspend the sentence and so the 3 months’ imprisonment is suspended for 2 years. 

Ms Mary Sin, SADPP of Department of Justice, for the Respondent

Mr Christopher Morley of Messrs Haldanes, for the Appellant