HKSAR v. Pang for Cheuk

CACC000623/1998

CACC 623/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 623 OF 1998

(ON APPEAL FROM DCCC 1075 OF 1998)

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Coram: Hon. Stuart-Moore, V.-P., Leong and Wong, JJ.A. in Court

Date of hearing: 15 July 1999

Date of delivery of judgment: 15 July 1999

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. The applicant was convicted after a trial before H. H. Judge Toh in the District Court of one charge of living on the earnings of prostitution (1st charge) and one charge of criminal intimidation (3rd charge). He was sentenced to 18 months imprisonment on the 1st charge and 12 months imprisonment consecutive on the 3rd charge. He now seeks leave to appeal against sentence.

2. The applicant operated a place called Shan Lam in Mongkok. In February, 1997, PW1 a 17 year-old girl was taken there by her boy friend to work as a prostitute to pay off a debt which her boy friend had incurred and in respect of which she acted as guarantor. The arrangement was that customers would pay the applicant for the girl's service and the applicant after deducting his share, would give the balance of the fees to the girl to pay off the debt of her boyfriend. A week after the girl started work, instead of receiving customers at the applicant's place, she was sent to such places as the applicant directed to provide service to the customers there. On her return, she would have to account to the applicant her intake and the applicant would then give her her share. This went on until March or April the following year when the girl indicated to the applicant she did not want to work as a prostitute any more. In the meantime, the applicant told the girl that he had taken over the debt of her boy friend and she had to repay him. In addition during this period the girl occasionally borrowed money from the applicant. All these loans accumulated to over $100,000 by March 1998. The girl discussed repayment with the applicant. The applicant agreed to the girl repaying these loans by monthly instalments and he also discounted the total owed to him by her to $900,000. After that the girl only came to work as a prostitute for the applicant when she could not meet the monthly instalment. On 1st July 1998, the applicant went to her home and told her to resume work as a prostitute but she refused. The applicant then told her he would charge her interest on the outstanding loans and if she did not repay, he would ask collectors to come to her home and her family would be disturbed and that would be unsatisfactory. The applicant indeed had gone to her family a number of times when the girl still did not pay up.

3. The applicant had previous convictions of gambling, managing a vice establishment and living on earnings of prostitution. The present case is therefore not his first conviction of this kind of charge. The Judge in her Reasons for Sentence said this in relation to the 1st charge:

"The first charge, if committed with a young woman of adult age, may not be so serious. But here we are talking about the encouragement, an aiding and abetting of a young teenage girl in her own destruction. The trade is not only illegal but immoral. The courts in Hong Kong have a duty to protect young girls from themselves and to punish those that aid and abet them and at the same time enjoying part of their earnings, and the courts have to punish the perpetrators in a properly severe way to deter other men, like the defendant, who indulge in these kinds of charges".

4. The Judge having taken this serious view of the case, concluded that the proper sentence for this charge was 18 months imprisonment.

5. The first ground of appeal is that the Judge should not have imposed a deterrent sentence as there is no evidence that such charge was prevalent.

6. Mr. Wong for the applicant referring to R. v. Yau Chi-keung, Mag. App. No. 1597 of 1989 and R. v. TamYui-kwong [1989] 1 HKLR 190 submits that the 18 months imprisonment was not appropriate.

7. In the present case, the applicant is a mature man of 32 years. Over a period of more than a year, the applicant not only derived his income from the teenage girl's earnings from prostitution, but also lent money to her to tie her to the trade in order that she could repay him and at the same time provide him with income. This is not the first offence of its kind committed by the applicant who also has previous convictions of gambling and managing a vice premises. In these circumstances, the Judge was justified to take a serious view of the case and impose a relatively long sentence. The present case is different from the case of Tam Yui-kwong where the girl only worked as a prostitute for a week or so. The Court of Appeal's conclusion in Tam Yui-kwong that 18 months was out of line and 9 months was appropriate should be confined to the particular circumstances of that case. Mr. Madigan, for the government has informed this court that there is no tariff for this type of offence.

8. In our view, 18 months in the circumstances of the present case may be on the high side but is not manifestly excessive or wrong in principle.

9. The second ground of appeal is that the trial Judge also erred in taking the line of defence counsel's cross-examination of the witness into consideration when assessing the mitigating factors inherent in the circumstances of the case. What is complained in this ground is that the Judge having recognised that the applicant did not use any force or threat as a basis of mitigation, failed to put it in the proper perspective when passing the sentence. It is also submitted that it is wrong to offset such mitigation by defence counsel's line of cross-examination, however rigorous it was.

10. In support of this complaint Mr. Wong referred us to the following passage in the Judge's Reasons for Sentence:

"It is true that the defendant did not use any force or threat on PW1 from February 1997 to March 1998. But that slight mitigation is offset by the fact that PW1 was subjected not only to serious questions about her character by allegations that she has been a prostitute before she met the defendant."

11. We agree that the conduct of defence counsel in cross-examining prosecution witnesses should not in anyway be made subject of consideration as to sentence. That said, the lack of use of force or threats on PW1 had little weight in mitigation in a charge of this kind. On the other hand, if there were use of force or threat, that may be an aggravating factor. Despite what the Judge had said in this part of her Reasons for Sentence, the applicant had not been prejudiced. The second ground must fail.

12. The third ground of appeal is that the trial Judge erred in placing circumstances and threats of the 1st charge in considering the sentence of the 3rd charge without considering sufficiently the charge itself and the circumstances relating to that charge. What is complained in this ground is that the only evidence of intimidation is the applicant having said to the girl that if she did not pay, the applicant would give the debt to somebody to collect and her family would be disturbed and that would be unsatisfactory. Mr. Wong submits that the Judge had considered the evidence of the 1st charge to decide the sentence on the charge of intimidation and that was wrong.

13. What the Judge said in relation to the sentence on this charge is as follows:

"As for charge 3, the defendant took advantage of PW1's youth and innocence by threatening her that harm would come to her family if she did not return to work. These words uttered by the defendant with his background are enough to make a reasonably mature person quake in his boots, let alone that they were uttered to a 16 year old or 17 year old who also had shown herself to be exceedingly gullible. The fact that sometime in July people were sent up to the home of PW1 and the fact that the defendant admitted to PW2 that they were from his company to just go to their home to disturb them reinforces the alarm PW1 must have felt and shows that the defendant's intention on 1 July was indeed to alarm PW1."

14. What the Judge had in mind was not only the evidence of the words uttered by the applicant but also the circumstances leading to the words being uttered and followed by action of the applicant. These made the words uttered indeed serious threats that alarmed the girl. The Judge was entitled to consider all the circumstances to determine the seriousness of this charge and the sentence of 18 months imprisonment imposed is not in any way excessive. It may be said on the light side and a sentence of 18 months would not have been inappropriate. Since this is a distinct charge of a separate different nature, the sentence ordered to run consecutively to other sentences would not have been wrong.

15. The final ground of appeal is that the trial Judge failed to consider the totality principle in respect of the sentence on the two charges. The total sentence of 30 months for the criminality of the two charges is appropriate. It is only where the criminality of the two charges does not justify 30 months imprisonment that the Judge needs to consider making the two sentences partly concurrent and partly consecutive to discount from the total sentence. The sentences imposed by the Judge are not in any way manifestly excessive or wrong in principle. We refuse the application for leave to appeal against sentence.

Representation:

Mr. P.K. Madigan, S.G.C. for Respondent

Mr. Kevin Wong instructed by M/S Josip Ma & Co. for Applicant