HKSAR v. Pang Man Wai and Another

CACC 250/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 250 OF 2007

(ON APPEAL FROM DCCC NO. 1020 OF 2006)

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Before:  Hon Tang VP and Wright J in Court

Date of Hearing: 15 February 2008

Date of Judgment: 3 April 2008

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JUDGMENT

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Hon Tang VP:

The 1st applicant (The 4th defendant)

1.The 1^st applicant was the 4^th defendant at trial and was convicted on his own plea on seven charges, three for living on earnings of prostitution (charges 3, 7 and 10) and four for controlling another person for the purpose of prostitution (charges 4, 5, 8 and 11).  He was sentenced to 14 months’ imprisonment for each of charges 3, 7 and 10 to run concurrently, and 22 months’ imprisonment each for charges 4, 5, 8 and 11 to run concurrently, of which 16 months were to run consecutively to the sentences of charges 3, 7 and 10.  His total sentence was therefore 30 months’ imprisonment.

2.A sentence of 4 months’ imprisonment suspended for 2 years which was passed on him on 8 May 2006 for an offence of managing a vice establishment in an earlier case was ordered to be activated and to run consecutively to the sentence in the present case.  So ultimately his total sentence was 34 months.

3.According to the Summary of Facts for the 4^th defendant’s plea, he was concerned with the prostitution of PW1, PW2 and PW3.  All the girls came to Hong Kong illegally.  He was a “ma foo” (馬伕), the girls were given to him for prostitution by the 1^st defendant, and it was he who told PW2 (the subject of charges 7 and 8) that she had to work as a prostitute.  I quote from the Summary of Facts:

“She was unwilling but was scolded by ‘Ah Wai’.  Then ‘Ah Wai’ started arranging customers for her.”

The 4^th defendant was “Ah Wai”.

4.In relation to PW3, the subject of charges 10 and 11, the 4^th defendant admitted that she was inexperienced and that “fat man then had sex with her in the premises in order to teach her”.

5.As for PW1, the subject of charges 3 and 5, she was only 16 years old.  The 4^th defendant had also admitted that:

“A ‘boss’ called her and told her that she had to work as prostitute to repay the fee for sneaking into Hong Kong.”

6.The 4^th defendant submitted that the girls were not held against their will.  They could have left anytime.  The door was unlocked.  But that is unrealistic.  They were in Hong Kong illegally.  There was nowhere for them to go.

7.The 4^th defendant who appeared in person has referred to R v Fong Yuk-choi and Anor [1983] No. 819 / [1983] No. 1086, dated 11 October 1983, where some girls were recruited from Bangkok for prostitution in Hong Kong and were involved in what Silke JA described as a ‘big money operation’.  The sentences were between 9 months and 2 years.

8.However, it is important to note that Silke JA said:

“32.	As we have said there is nothing to suggest that the girls were forced into the trade.
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34.	We think that the high maximum penalty under this particular section is probably to allow for those cases where there is an element of duress, an element of false imprisonment or, in cases nearer to Hong Kong, an element of triad stamping.”

Silke JA was there referring to the charge of exercising control over a woman for the purpose of her prostitution, which carries a maximum sentence of 14 years’ imprisonment.

9.The 4^th defendant has also referred to newspaper reports of DCCC 292 of 2007, published on 13 February 2008 in the Ming Pao Daily and the Sing Tao Daily.  According to the reports, two persons aged 25 and 33 respectively were convicted of control of three 15-year-old girls for the purpose of prostitution.  They were sentenced to imprisonment for 12 and 14 months respectively.

10.I have called for a transcript of the Reasons for Verdict and Reasons for Sentence in DCCC 292 of 2007, copies of which will be made available to the 4^th defendant.  It is clear that there the girls were not in Hong Kong illegally, and that they were willing prostitutes.  Also, there was no evidence that they were under 18, although so far as the 1^st defendant knew, they were under 18.  Had it been the case that they were indeed 15, or even 16, and that there was evidence that they were under any pressure to prostitute themselves, it is inconceivable that the sentences would have been so light.

11.The maximum sentence for living on earnings of prostitution and controlling another person for the purpose of prostitution being 10 years and 14 years respectively, I do not regard a total sentence of 30 months (for the sentences under appeal) to be excessive, and certainly not manifestly excessive.

12.The learned judge gave the 4^th defendant the usual discount of one-third for his plea.  In addition, for his assistance to the police, he was given further reduction of up to about 40%.  As for the activation of his 4 months’ suspended sentence, that was a sentence which was passed on 8 May 2006 for the offence of managing a vice establishment.  He began to commit the present offences in July–August 2006 which was within the first three months of the 2-year suspension period.  The order for the suspended sentence to be activated in full was appropriate.

13.Both Fong Yuk-choi and DCCC 292 of 2007 are distinguishable.  Here, it is clear from the admitted facts that at least in relation to PW1 and PW2 there was an element of duress.  That is an important aggravating factor.  There are also the important aggravating factors that the girls were in Hong Kong illegally, and in the case of PW1, she was only 16.

14.In such circumstances the sentences cannot be regarded as manifestly excessive.  The 4^th defendant’s application for leave to appeal against sentence is dismissed.

The 2nd applicant (The 6th defendant)

15.The 2^nd applicant, who was the 6^th defendant at trial, was charged together with the 1^st, 2^nd and 5^th defendants with one count of conspiracy to live on earnings of the prostitution of PW1, Hon Yau (charge 19).

16.She pleaded guilty on the 17^th day of trial.  The 1^st, 2^nd and 5^th defendants were convicted after trial.

17.The 1^st defendant was also convicted of three other charges, namely counts 9 and 17 for trafficking to Hong Kong in persons, contrary to section 129(1) of the Crimes Ordinance, Cap. 200, and count 18 of controlling another person for the purpose of prostitution, contrary to section 130(1)(b) of the Crimes Ordinance.  He absconded before the conclusion of the trial which was carried on in his absence.

18.In sentencing the 6^th defendant, the learned judge adopted a starting point of 2 years.  She gave her a discount of 20% which was rounded up to 5 months, although she pleaded guilty late in the day.

19.In sentencing the 1^st defendant, the learned judge also adopted a starting point of 2 years in respect of charge 19.  However, the total sentence of the 1^st defendant was 69 months which was arrived at as follows: in respect of charges 9 and 17, the learned judge adopted 2½ years as the starting point, but she enhanced the sentence by 50%, so that the sentence became 45 months for each of charges 9 and 17.  They were ordered to be served concurrently.  In respect of charges 8 and 19, the 1^st defendant was sentenced to 2 years’ imprisonment to be served concurrently.  She ordered that 12 months of the sentence in respect of charges 18 and 19 be served consecutively to those of charges 9 and 17.

20.Mr Allan, who appears for the 6^th defendant, submitted that the 6^th defendant is aggrieved because the same starting point was adopted for her as for the 1^st defendant, it being uncontroversial that the 1^st defendant was the principal offender.  However, it is important to bear in mind that in sentencing the 1^st defendant, the learned judge must have been influenced by the totality of the sentence.  So far as the 2^nd and 5^th defendants were concerned, they were convicted on the same charge and were sentenced using the same starting point.  Their appeals have been abandoned.

21.So this is not a case where we believe the 6^th defendant should feel aggrieved.

22.PW1 was brought to Hong Kong illegally for the purpose of prostitution.  She was only 16 at the time.  Mr Allan submitted that the evidence of PW1’s age was unclear.  I do not agree.  There was medical evidence that she was aged between 12.8 years and 16.4 years old.  More importantly, in the Summary of Facts agreed to by the 6^th defendant it was recorded that the 1^st defendant had told PW1 “that she had to work as a prostitute before she can go back to the Mainland”.  In such circumstances, the sentence of 2 years for a conspiracy to live on the earnings of PW1 as a prostitute, cannot be regarded as manifestly excessive.

23.Nor do I agree with Mr Allan that the discount of 20% for her plea was inadequate.  It is true that she acted in person at trial but she pleaded guilty after PW1 who had identified her had given evidence.  The 6^th defendant has five previous convictions, all concerned with vice establishments.  She has an unfortunate background and supported herself and her daughter who was 15 years old on Comprehensive Social Security Assistance (CSSA) as well as on the proceeds of her own prostitution but no doubt the learned judge had taken her background into consideration when she sentenced her to imprisonment for 19 months.

24.So leave to appeal of the 2^nd applicant is also refused.

25.Since proposing the above, I have had the advantage of reading Wright J’s judgment in draft.  I wish to add my emphatic agreement with the sentiments expressed in the last paragraph of his judgment.

Hon Wright J:

26.I agree that each appeal should be dismissed.

27.The Vice President has summarised the salient features of the evidence before the judge in respect of each applicant. There is no need for repetition.

28.On any view of the evidence, this was a substantial, well-organised and no doubt lucrative operation which involved the prostitution of females brought in from the Mainland, some of whom including PW1 were in their early to mid teens. Each applicant would have been aware of the general nature and extent of the operation.

29.Insofar as the 1^st applicant is concerned, his role saw him in close supervisory contact with the females to whom the counts against him relate. They were in his charge on an ongoing basis.  He cannot have been unaware of their status as illegal entrants or, in the case of PW1, of her youth.  He admittedly was aware of the use of pressure, and himself employed it, to ensure compliance by the females.

30.The 1^st applicant’s reference to a sentence passed in the District Court in another matter is of no assistance to him:  first, there is no tariff for offences of the nature of which the 1^st applicant was convicted – understandably as facts will differ widely from case to case; second, the imposition on one accused person of what on the face of it may be an unduly lenient sentence does not advantage another accused, the fundamental question being whether the sentence imposed is appropriate for the offences committed in the particular circumstances by the particular offender.

31.A custodial sentence is generally appropriate. The starting points adopted by the judge were entirely proper. The discounts afforded were appropriate, individually and accumulatively, in the circumstances.  Activation of the suspended sentence was inevitable.

32.The 2^nd applicant appeals on three bases: that she feels a sense of grievance that the same starting point was adopted when she was sentenced as was adopted for others whose role in the overall operation was more active; that the discount afforded her for her belated plea was inadequate; that there was a lack of certainty as to the age of PW1. There is no merit in any of these points.

33.The 2^nd applicant was convicted of a count of conspiracy to live on the earnings of the prostitution of PW1. The judge adopted the same starting point for each of the conspirators involved in that offence.  The conspiracy was only one facet of the overall operation.  That one or more of those conspirators may have been more culpable in regard to the overall operation, that is matters beyond the confines of the conspiracy, is reflected in the fact that he or they faced additional charges – and, where convicted, received higher overall sentences commensurate with their overall involvement.  The judge was correct in taking the same starting point in respect of the conspiracy charge for each conspirator absent any evidence that any one of them played a more active role in that conspiracy.

34.The judge afforded the 2^nd applicant a little over 20% as a discount for a plea tendered after 17 days of trial and once evidence had been led which directly implicated her.  Mr Allan’s submission that she should receive a greater discount because had she been legally represented she may have pleaded earlier is entirely speculative. The discount was, in the circumstances, generous, not inadequate.

35.As to the age of PW1 it is important to recall that her age had been assessed by the prosecution: she disputed that assessment as being too high and engaged her own medical practitioner who assessed her age as between 12.8 years and 16.4 years old but likely to be about 15.  Assuming in favour of the 2^nd applicant that she did not know the precise age of PW1 there can be no doubt that she would have been aware of the fact that she was living on the earnings from prostitution of a person similar in age to her own daughter.

36.Whether PW1 was just under or just over 16, she was very young.  That is an age where maturity is yet to be acquired, the judgment process is still developing and at which there remains real vulnerability capable of exploitation. There is a positive duty on the courts to ensure the protection of those whose very youth results in them being inadequately equipped to make lifestyle decisions having potential long term and far reaching consequences. It is these factors which make comparative youth on the part of a person being exploited for the purposes of prositution an aggravating feature of offences of this nature.

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

The 1^st Applicant, in person, present.

Mr. William Allan, instructed by Messrs Paul Kwong & Co., for the 2^nd Applicant.