HKSAR v. Au Kam Yui

HCMA1111/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1111 OF 2006

(ON APPEAL FROM KTCC 6607 OF 2006)

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BETWEEN

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Before : Hon Nguyen J in Court

Date of Hearing : 8 March 2007

Date of Judgment : 8 March 2007

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J U D G M E N T

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1.The appellant pleaded guilty to the charge of managing a vice establishment and was sentenced to 12 months’ imprisonment, the learned magistrate having adopted a starting point of 18 months.  

2.The magistrate was of the view that there were aggravating circumstances in this case.  He mentioned this in his reasons for sentence as the fact that there were eight illegal immigrants and three other Mainland women on two-way permits, who were found on the premises working as prostitutes. 

3.There were in fact, on the premises, 11 females who were found, eight of whom were illegal immigrants and three were two-way permit holders.  Of the three who were two-way permit holders two were legitimately in Hong Kong while one had over-stayed the visa by eight days. 

4.The police found on the premises only one customer.  There were on the premises five rooms with attached bathrooms.  The appellant had worked on the premises for only a matter of 10 odd days and he was earning $300 per day. 

5.The complaint by Mr Chung on behalf of the appellant was that the starting point of 18 months adopted by the magistrate was too high.  It is accepted by both counsel that there are no tariffs for this type of offence. 

6.Looking at previous cases is not always of assistance because the facts of each case may vary from one to another.  However looking at five previous cases which have been helpfully tabulated into a table by Ms Tsang for the respondent, it is clear that the highest sentence imposed was one of 12 months, these were all appeal cases decided in the years 2001 to 2006.

7.In the case where the sentence was reduced for the plea of guilty from 15 months to 10 months namely HCMA366/2006, HKSAR v. Lau Tai So, it is not known how many prostitutes were working on the premises.

8.A somewhat similar case to the instant one is HKSAR v. Lee Tang Yau, HCMA602/2001 where the starting point adopted by the magistrate which was upheld on appeal was one of 12 months and, because of the plea of guilty, the sentence was reduced to 8 months.  In that case, there were also eight illegal immigrants working on the premises, the premises had seven cubicles which could have been used and, as I have said, the sentence was reduced from 12 months to 8 months because of the plea of guilty.  

9.It is accepted by both counsel that the fact that there were illegal immigrants working on the premises can be an aggravating factor because, apart from anything else, it can have the effect of attracting women from across the border to come to Hong Kong to work as prostitutes. 

10.In the present case there is also the added factor that the 1^st defendant, who was in a similar position to the appellant, pleaded guilty to the same charge before another magistrate two months after this appellant was sentenced and received a sentence of six months’ imprisonment on a starting point of nine months.  That, as Mr Chung pointed out, is half of the sentence imposed on this appellant.  Disparity of sentence is not by itself a reason for interfering with the sentence and it is the appropriateness of the sentence which is appealed against which is relevant.  The 1^st defendant was in a similar situation to the appellant except that he was on a monthly salary of $8,000 per month.  Quite clearly, this appellant has suffered a sense of grievance because of the sentence he received.  But as I have said that is not a reason for interfering with the sentence. 

11.However I do take the view that the starting point of 18 months adopted by the magistrate is excessive and, consequently, I allow the appeal.  I reduce the sentence to one of eight months’ imprisonment on a starting point of 12 months.  

Ms Tsang Oi Kei, Olivia, GC of Department of Justice, for HKSAR

Mr Bernard Chung, assigned by the Director of Legal Aid, for the Appellant