HKSAR v. Aspuria Carmen Bao-ilan and Another

DCCC1219/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1219 OF 2009

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Reasons for Sentence

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1.D1 and D2, you were convicted after trial of one joint offence of conspiracy to traffic in persons, contrary to sections 129(1), 159A and 159C of the Crimes Ordinance, Cap.200, and two offences of jointly aiding and abetting the breach of conditions of stay, contrary to section 41 of the Immigration Ordinance, Cap.115 and by virtue of the Immigration Regulations, Cap.115A, and section 89 of the Criminal Procedure Ordinance, Cap.221.

2.The facts have been dealt with at length in my verdict and I do not intend to repeat them, suffice it to say that you each conspired with each other to bring the two victims into Hong Kong to be employed as prostitutes in your club. You were both fully aware that neither was able to take up paid or unpaid employment. The evidence showed that they served for three nights in the club. The evidence also shows that they were allowed to leave when they demanded to do so. At no time was threats or force ever used against them.

3.Both of you are of hitherto clear record.

4.An application to enhance sentence was made by the prosecution under section 27(2)(a) of the Organised and Serious Crimes Ordinance, Cap.455. The basis of that application was two victim impact reports prepared by Dr Ephraim Tsoi(?), police clinical psychologist. Mr Omar simply placed those two reports before me and asked that consideration be given to enhancing the sentence of each or either of you defendants in accordance with the provisions of section 27(2)(a) of the Organised and Serious Crimes Ordinance, as I have previously mentioned.

5.Mr Lam, on behalf of you, D1, and Mr Marray, on behalf of you, D2, addressed me and provided written final submissions to the court in mitigation. On behalf of their respective clients they placed before me mitigation and opposed the application to enhance sentence. This was on the basis, as I understand it, that this was not an appropriate case where what may be described as a Draconian power should be invoked.

6.D1, I deal first of all with your position. You were, of course, represented by Mr Lam.

7.You are 48 years of age, you have hitherto a clear record, and resident in Hong Kong since 1986, when you came as a domestic helper. In 1989, you married a Hong Kong resident and gained your own residency in the 1990s. You live with your mother and two brothers. Your son lives and works in Macau. You opened this club known as the El Cid Club in 1992 and it has operated without problems until your arrest.

8.Quite rightly, Mr Lam addressed me to the effect that there is no tariff for this type of offence. In fact, it is fair to say that there are very few decided cases under this section.

9.I was referred to the case of HKSAR v Lau Chi Yu and Another, CACC148/2005, where a starting point of 3 years’ imprisonment was held not to be manifestly excessive. However, I do agree there were marked differences in that case from the present one. In my opinion, that was a much more serious situation as it involved a girl of only 16 years of age being trafficked to Japan and indulging in 20 to 30 acts of sexual intercourse with customers prior to being released.

10.I was also referred to another authority, R v Soonthorn Chookiat Pravit, CACC301/1991, so it is an old case, and in this case 2 years was upheld for a Thai man posing as a lady’s husband in order to bring her into Hong Kong. The purpose of bringing her in to Hong Kong was to install her in a brothel to work as a prostitute. I do note at that stage, and I am obliged for the concession from Mr Lam, that the maximum penalty was one of 7 years.

11.Again, in my opinion, this was a slightly more serious case than the one we are dealing with today in that it involved a foreign national escorting another foreign national into Hong Kong to work as a prostitute. That establishes a clear international dimension.

12.Mitigating factors in relation to the offence were urged upon me. These included the lack of coercion or force with the victims free to go at any stage, having entered Hong Kong legally in the first place. The evidence suggested very strongly, and I give the benefit of the doubt to you on this, that at the end of their 14 day period of lawful stay they would have left Hong Kong. There is nothing to suggest that you would have kept them beyond the time.

13.I noted also, D1, that after working for three days in your club you apologised to them as not being aware that they were unwilling to work in this particular trade. This supports the contention that you, D1, nor indeed D2, took any part in luring the women here by false pretences or misleading them. The victims were both mature ladies in their 20s. I note that no acts of sexual intercourse actually took place, and there was no international dimension as you, D1, are a Hong Kong resident. I say that even though the victims were not.

14.Mr Lam on behalf of D1 submitted the starting point should be somewhat less than the two authorities he cited.

15.Referring to the applications for enhancement, he said these were not appropriate cases for such enhancement. Even if I accepted the psychological reports, the major trauma resulted from the cheating and misleading by one Aunt Mila, not by either of you two defendants.

16.Perhaps in fairness I should pause a moment and say I do accept those reports and I express my great sympathy for the two victims. They were clearly lured to Hong Kong expecting something different from what actually took place and have suffered a great deal of trauma, and whilst it is a complex situation and others are involved, you two are not blameless.

17.Mr Marray on behalf of you, D2, also entered mitigation and opposed the application for enhancement.

18.He told me, and this is supported by the evidence, that you had been employed as a domestic helper until June 2009, and you are of clear record. You reside with D1 and her family.

19.The first physical contact that you had with the two victims was at the ferry terminal. There was no actual evidence of you having gained from their prostitution in the material sense, nor was there any evidence of you having financial interest in the El Cid Club, though the evidence clearly showed that you were employed at that club. However, it is abundantly clear that you took the victims to the club and you were instrumental in them wearing skimpy clothing and the other matters which were referred to. One of the most objectionable pieces of evidence against you was your suggestion to them that they might like to work as prostitutes if they were to give it a chance.

20.I noted that at all times the victims were free to leave, that you at no time used threats to pressurise them to remain.

21.The problems that the victims had faced in the Philippines cannot be laid at your door. These are the problems that have occurred since the commission of these offences. The court simply does not have enough information on that. It is clear to me, according to the evidence, that others were more blameworthy in misleading the victims than you were.

22.Mr Marray concluded by inviting me to look at the facts and coming to the conclusion that these offences are at the lowest end of the scale, whilst realistically accepting that a prison sentence is inevitable in these circumstances.

23.I agree with that proposition. I cannot envisage any circumstances when this offence would not attract a prison sentence.

24.I turn now to the sentence itself.

25.These are serious and unpleasant offences involving exploitation of women for financial gain. Having said that, the evidence strongly suggests that the victims were misled into coming to Hong Kong for the purpose of prostitution by other persons than yourselves. The evidence of your involvement in the arrangements to bring them here and your assisting their entry is overwhelming, as is your part in their illegal employment upon arrival.

26.I do accept that in this case the victims were mature ladies, there was no element of coercion, force or violence used against them, they were free to make contact with whomsoever they wished, and they had no restrictions placed upon their liberty. Also, it is clear that they were free to refuse to accept the work as a prostitute - indeed, they did so - and they received an apology from you, D1, when they exercised their right.

27.I am prepared to accept that both of you did honestly believe that the victims had come in full knowledge of what their employment was to be. It is clear also that there was a proper structure of remuneration for what is improper work.

28.The conclusion I come to is that whilst these are serious offences, they are indeed at the lower end of the scale. Whilst expressing profound sympathy for the victims, there is a lack of aggravating features in this case. I do reflect that it is a pity you put them through the trauma of the witness box, but that of course is your right. That they have suffered psychological damage is unchallengeable, in my opinion, but that can be laid at the door of others to a larger extent, although I make the point that you are far from blameless because of the purpose for which you brought them to Hong Kong.

29.Taking all matters into account, I do not deem this to be an appropriate case to warrant enhancement, lacking as it does any aggravating features in the commission of the offence itself. The penalties provided by the section are more than adequate to deal with the criminality in this case.

30.D1, you are the club owner and the boss and you are clearly, in my opinion, the more culpable.

31.Charges 2 and 3 are, in my opinion, natural and logical extensions of the 1st charge. It was inevitable, having brought them here in the circumstances that they were brought here, that you would commit those offences.

32.Taking all matters into account, D1, on Charge 1, you will go to prison for 21 months, and D2, you will go to prison for 18 months.

33.On Charges 2 and 3, you will each go to prison for 4 months on each, concurrent to each other and concurrent to Charge 1.

34.To make it entirely clear, that means you, D1, will serve 21 months, and you, D2, 18 months.