HKSAR v. Wang Meng

HCMA 599/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 599 OF 2010

(ON APPEAL FROM ESCC 2925/2010)

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Before: Deputy High Court Judge E. Toh in Court

Date of Hearing: 17 September 2010

Date of Judgment: 17 September 2010

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J U D G M E N T

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1.The Appellant had pleaded guilty in the Magistrates' Court to one charge of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong.

2.Undercover officers had answered an advertisement in a website that promoted sexual services on an anti-vice operation on 12 July 2010.  One undercover officer posing as a customer had called the mobile telephone number on the website and was told to go to Room 701 of the Wifi Hotel and when he went there, the Appellant was inside the room.  The Appellant offered to provide him with sexual services for $800 and the undercover police office paid her with marked police money.

3.The Appellant was arrested and she said that she had sneaked into Hong Kong on 14 June 2010, and had worked as a prostitute at that location.

4.The Appellant had a clear record in Hong Kong.

5.In mitigation, the duty lawyer, representing the Appellant, had submitted that at the time of the offence she was 19 years old, and she had finished high school in China, and had come to Hong Kong because her family was under financial pressure.

6.At the outset upon arrival in Hong Kong, she said she was unaware that she would be working as a prostitute.  But when she learned that she would be working as a prostitute, she did not resist.

7.It has always been clear that the guideline sentence for this type of offence would be one of 15 months' imprisonment after a plea of guilty.  Of course, it is also recognised that it is only a guideline, and that each case has to be determined on its own facts and mitigation.  The learned Magistrate had considered the mitigation, she could not see any humanitarian consideration which would warrant her departing from 15 months’ imprisonment, so she sentenced the Appellant to 15 months’ imprisonment.

8.Mr Boyton, acting on her behalf on the appeal, had submitted one ground of appeal, which is that the learned Magistrate had erred in law and/or on the facts by failing to exercise and/or failed to consider whether or not it was appropriate to exercise judicial discretion to reduce the sentence because of the Appellant's young age.  It is Mr Boyton submitted the practice of the courts to consider that a 19 year-old is someone who is not mature, and therefore should be given special humanitarian consideration and have her sentence reduced.

9.On the facts of this particular case, I do not think that the Appellant is so immature that she did not know or was not aware of the consequences of her action.  As I have said earlier she had finished high school education in China.

10.She arrived in Hong Kong on 14 June and she was arrested on 12 July.  I agree with the learned Magistrate that there are no humanitarian considerations in this case that would warrant a departure from the 15 months' imprisonment.  So the appeal is dismissed.

Mr Law Kwan Wai, Thomas, SADPP of the Department of Justice, for the Respondent

Mr David Boyton, instructed by Messrs Patrick Mak & Tse, for the Appellant