HKSAR v. Cheung Sze Wah and Others

DCCC 1029/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1029 OF 2008 

BETWEEN

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Reasons for sentence (D3 and D4)

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Reasons for sentence (D3 and D4)

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1.Both defendants pleaded guilty to one count of assisting in the management of a vice establishment at the beginning of this trial in April 2009. They gave evidence for the prosecution against D1 and D2 in relation to Prince Silver Spring Sauna (S1). They were meticulously cross-examined during the trial for several days. In convicting the other defendants, I accept that D3 and D4 are credible witnesses. Their evidence has rendered the prosecution case much stronger.

2.D3 admitted that she was the middle shift assistant manageress of S1 at the material time. She was on duty from 3pm to 1230am each day. She was responsible for employing minor staff, assigning duties, discipline masseuse, levying fines on non-compliance of company rules and introduce masseuses to customers for sexual services. She was the over-all in-charge of S1 at all material times. In S1, there were about 50 active masseuses on duty. About half of them were prepared to offer sexual services and the others were offering regular massage. The sexual services included hand job (set A), oral sex, body massage (set B) and sexual intercourse (set C). The charges were $496, $596 and $796 respectively. Payment by customers was systematically collected by the cashier of S1.

3.D4 admitted that she was the night shift assistant manageress of S1. Her working hours were 9pm to 6am each night. Her duties were similar to that of D3.

4.As I find during the trial, S1 started to provide an elaborate sets system of sexual services to customers in 2004. D3 and D4 were pivotal in carrying out this system albeit that they were just employees carrying out the order of D1. Both the scale and the organized structure of S1 indicated detailed planning by the management. S1 even had an alerting mechanism by turning on ceiling lights to alert masseuses inside massage rooms and rendered police licence checks futile.

5.While sentencing of this offence may vary from case to case, the organization of S1 is elaborate and those managing or assisting the management of it deserve immediate custodial sentences.

6.D3 is 55 and has a clear record. She has 3 adult daughters. She worked in S1 as early as 2001 when S1 only provided regular massage. Counsel describes her as a successful mother and wife. However, the change of the business policy in 2004 left her with no choice but to comply with the company policy or she would lose her job. That said, D3 actively participated in the management of S1. She was fully aware of the system and voluntarily implemented it. I do bear in mind that she had given credible evidence in court and stood firm against vigorous cross-examination, in my view, that certainly entitles her a big discount in sentence.

7.D4 is 47, divorced with a son of 26. Her culpability is similar to that of D3 as stated above. I do not propose to repeat here.

8.I have considered the mitigation letters submitted by each defendant. I certainly bear these in mind in sentencing.

9.Counsel for the defendants referred me to HKSAR v Lee Ka Ming and others, HCMA 223/2006, which mentioned other cases in which suspended sentence was passed for this offence. In fact there are other cases in which supported immediate custodial sentence for this offence, HKSAR v Lam Sze Kei & another, [2005] 3 HKLRD 274, in which the defendant was sentenced to 8 months imprisonment. In my view, the sentence for this offence depends on individual facts.

10.Having considered all the circumstances and the particular facts of this case, I consider immediate custodial sentence is warranted. I take the starting point of 12 months. I deduct 4 months for the plea. D3 and D4 each gave credible evidence in the trial, I deduct a further 3 months. However, I also take into account of the delay in bringing the prosecution of this case, I deduct a further one month from the sentence. I make the following orders:

a)      For the 11^th charge, I sentence D3 to 4 months imprisonment.

b)     For the 12^th charge, I sentence D4 to 4 months imprisonment.