HKSAR v. Lau Tai So

[English Translation – 英譯本]

HCMA 366/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 366 OF 2006

(ON APPEAL FROM KCCC 1669 OF 2006)

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BETWEEN

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Before: Deputy High Court Judge Poon in Court

Date of Hearing: 9 June 2006

Date of Judgment: 9 June 2006

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JUDGMENT

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1.The appellant pleaded guilty to a charge of managing a vice establishment, contrary to section 139(1)(b) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong, and a charge of displaying a sign advertising prostitution, contrary to section 147A(1) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong. He was sentenced to 10 months’ imprisonment on the first charge and to 2 months’ imprisonment on the second charge, with the sentences to run concurrently.

2.Today, counsel for the appellant clarified that the appeal against sentence is only in relation to the first charge.

3.The facts of the case revealed that two plain-clothed police constables, posing as customers, arrived at the premises in question separately. The appellant arranged for prostitutes to provide sexual services to each of them. Subsequently, the appellant was arrested. At the entrance to the building where the premises were situated, the police seized a plastic placard bearing words that advertised prostitutes’ service inside the building. The police also seized from the premises various items relating to the operation of vice business, such as toilet paper and a large quantity of condoms.

Ground of appeal

4.Counsel for the appellant submitted that the starting point adopted by the magistrate on the first charge was excessive. Counsel conceded that, given the criminal record of the appellant, the magistrate could have imposed a higher sentence. However, Counsel submitted that there were no aggravating features in the present case that justified an increase in sentence, and that the size of the vice operation in question was comparatively small. As regards the appellant’s last conviction on a similar offence, it is not disputed that the magistrate in that case had adopted 9 months as the starting point. Counsel contended that the upward adjustment of the starting point in the present case to 15 months was manifestly excessive.

The respondent’s reply

5.Counsel for the respondent cited a number of decided cases. She pointed out that section 139 of the Crimes Ordinance, Cap. 200 was amended on 22 May 1998 by increasing the maximum penalty on summary conviction from 2 years to 3 years and repealing the fine. She relied on Secretary for Justice v. Lee Cho Keung, which statedthat a sentencing court should note that the cases of R v. Kwan Wah Sang, HCMA 1324/1988 and HKSAR v. Ng Tsz Fung, HCMA 800/1998 were decided prior to the aforesaid legislative amendment, and that cases subsequent to the amendment, such as HKSAR v. Lee Tang Yau, HCMA 602/2001, were still guided by Ng Tsz Fung,as could be seen from their judgments.

6.The respondent submitted that the sentences passed in other more recent cases showed that the starting point ranging from 3 to 6 months as laid down in Kwan Wah Sang had been enhanced.Generally speaking, for a first offender, the starting point was 12 months even if the vice establishment involved was of a small scale; for a repeat offender, the starting point could be further increased pursuant to the sentencing principle in HKSAR v. Chan Pui Shi [1999] 2 HKLRD 830. Furthermore, counsel for the respondent pointed out that the court had already adopted 9 months as the starting point in respect of the previous similar conviction of the appellant. As he had now committed a similar offence, he was to be regarded as a repeat offender, and the enhancement of the starting point to 15 months was not manifestly excessive.

Judgment

7.In his Reasons for Sentence, the magistrate said:

The said premises were a vice establishment of a small scale. This type of establishment is very prevalent in Yau Ma Tei and Mongkok. There is no specific sentencing guideline for this type of offence. However, generally speaking, an immediate custodial sentence ranging from 3 to 6 months can be imposed on a first offender. The defendant is aged 29 and has 8 previous convictions, 4 of which are for offences of the same nature as the present charge. In December 2004, he was sentenced to a concurrent sentence of 6 months’ and 2 months’ imprisonment respectively for two charges which were similar to those in the present case. On 30 March 2005, he was also sentenced to 2 months’ imprisonment for ‘displaying signs advertising prostitution’.

The fact that the defendant repeatedly committed the same offences indicates that the previous sentences did not have any deterrent effect on him and this in turn constitutes an aggravating feature in the present case. As a result, I have decided to adopt 15 months as the starting point so as to deter him from re-offending.

I reduce the sentence to 10 months on account of the guilty plea of the defendant.

8.The following sets out, in chronological order based on the date of judgment, a summary of the cases on sentencing in relation to the first charge:

(1) In R v. Kwan Wah Sang, HCMA 1324/1988, Yang CJ said:

… for custodial sentences the range appears to be 3 to 18 months, the most common being 3 and 6 months imprisonment.

(2) In HKSAR v. Ng Tsz Fung, HCMA 800/1998, where the appellant had a clear record, Nguyen J applied Kwan Wah Sang andtook the view that a starting point of 6 months was appropriate.

(3) The case of HKSAR v. Lee Tang Yau, HCMA 602/2001, cited by counsel for the appellant, also applied the starting point in Kwan Wah Sang and Ng Tsz Fung.

(4) In Secretary for Justice v. Lee Cho Keung [2004] 4 HKC 179, the trial judge applied Kwan Wah Sang in sentencing, but the Court of Appeal  observed that the trial judge “noted that the maximum sentence had been increased in 1998 but relied on ranges suggested by cases decided before that date and gave no effect to the legislature’s intention.”

(5) In HKSAR v. Cheung Chiu Choi (張招財) and Another, HCMA 531/2003, the operation of the establishment was organized but there were no aggravating features such as the involvement of illegal immigrants or prostitutes of a young age. Deputy Judge Barnes was of the view that a starting point of 12 months was appropriate. She pointed out, “If the court is minded to impose an immediate custodial sentence, the range will be 3 to 18 months. In light of the obvious prevalence of such offences nowadays, it is in my view improper to adopt the starting point in Kwan Wah Sang which was decided in 1988..”

(6) In HKSAR v. Lam Si Kei (林詩琪) and Another, HCMA 1249/2004, the appellant was charged with assisting in the management of a vice establishment which was of some scale. The magistrate adopted 12 months as the starting point and reduced the term to 8 months after giving a discount for the guilty plea. Deputy Judge To considered that there was nothing improper in adopting the starting point of 12 months.

9.Having analyzed the relevant decided cases, Deputy Judge To had this to say:

It can be seen from the two cases of HKSAR v. Lee Tang Yau and HKSAR v. Cheung Chiu Choi (張招財) and Another that the courts generally recognized a starting point of 12 months’ imprisonment for the offence of managing a vice establishment. In determining the starting point, the magistrate should, in my view, take into account: the scale and the mode of operation of the vice establishment concerned; the immoral activities provided; the physical size of the establishment; the number of employees and prostitutes; the customer volume; the fees charged; the business profits and turnover, etc. For the offence of managing an ordinary vice establishment with no more than 5 employees and 10 prostitutes, which involved a relatively simple mode of management, I think that the proper starting point is 12 months’ imprisonment. The magistrate can fix a proper starting point in light of the scale and mode of operation of the vice establishment in question. Furthermore, the magistrate can enhance the starting point on account of other aggravating circumstances such as the age of the prostitutes employed, whether they were illegal immigrants and whether they were employable in Hong Kong. … [Emphasis supplied] 

10.Further, Deputy Judge Barnes pointed out in Cheung Chiu Choi (張招財) that the court could increase the sentence by reason of the growing prevalence and increased incidence of a particular crime in a particular area so as to bring home the deterrent effect. In sentencing, a magistrate could duly consider whether a particular type of cases was prevalent or common within his/her jurisdiction.

11.Stuart-Moore VP made it clear in HKSAR v. Chan Pui Chi [1999] 2 HKLRD 380 that the court had a duty to enhance the starting point in respect of a persistent offender in order to deter because, when previous sentences apparently failed to have any effect on that offender and upon taking into proper account the public interest, it was necessary to impose a deterrent sentence so as to deter the offender from committing the offence again.

12.Having considered the two sentencing principles mentioned above, I am satisfied that, in the circumstances of the present case, it is not improper to adopt a starting point of 12 months in respect of a first offender. An enhanced starting point of 15 months on account of the appellant being a repeat offender cannot be said to be excessive, let alone manifestly excessive.

13.The appeal is dismissed and the sentence affirmed.

Ms Mickey Fung, Government Counsel, for the HKSAR

Mr. Ching Wan Fung, instructed by Tsang, Chan & Woo on assignment by the Legal Aid Department, for the appellant

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.