HKSAR v. Klangbunma Phenprapha

DCCC 861/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 861 OF 2013

---------------------

--------------------------------------

REASONS FOR SENTENCE

--------------------------------------

Introduction

1.The defendant pleaded guilty to three charges of trafficking in persons to Hong Kong, contrary to s 129(1) of the Crimes Ordinance, Cap 200 (respectively Charges 1 to 3); one charge of managing a vice establishment, contrary to s 139(1)(b) of the Crimes Ordinance (Charge 4); and one charge of failing to surrender to custody without reasonable cause, contrary to s 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221 (Charge 5). 

Facts

2.Shortly stated, the defendant on 2 June 2013, 20 July 2013 and 3 August 2013 respectively, took part in bringing a total of 4 Thai women, namely A, B, C and D into Hong Kong for the purpose of prostitution.  What the defendant had done was that she recruited the Thai women through third parties and paid for their air-tickets to Hong Kong.  In the case of A, the defendant also accompanied her to travel to Hong Kong from Thailand.  In the case of B, the defendant picked her up in Macau and the two of them then travelled together to Hong Kong.  In the case of C and D, the defendant picked them up at the Hong Kong Airport after they had arrived.  Between 3June 2013 and 5 August 2013, the defendant managed an apartment in Un Chau Street, Sham Shui Po which she kept as a brothel, using A, B, C and D to provide sexual services to patrons. 

3.The offences came to light on 5 August 2013 when an undercover police officer visited the defendant’s premises and posed as a patron.  It was then discovered that the prostitution of the four Thai women in Hong Kong had violated their condition of stay here as visitors.  Moreover, it was found that A had also overstayed as she was only permitted to stay in Hong Kong up to 31 July 2013.  

4.The defendant was duly arrested, charged and released on court bail from 23 September 2013.  However, she failed to surrender to custody and appeared in court on 2 December 2013 which was the day fixed for plea and sentence.  A warrant of arrest was issued.  Eventually, on 13 February 2014, the defendant was intercepted by a police officer on patrol duty in an amusement game centre in Hung Hom.  She failed to provide any explanation for her failure to surrender. 

Antecedent and mitigation

5.The defendant is aged 46.  She was born in Thailand.  She had worked in Hong Kong as a chef until December 2003.  She is now divorced and her two sons, aged 16 and 12 respectively, are now living in Hong Kong with her ex-husband. She also has a daughter, aged 13, who is residing with her former boy friend in Hong Kong.  She has a previous record of breach of condition of stay back in 1991 for which she was fined HK$500 which is not relevant to the present purpose.

6.Mr Ng, solicitor acting for the defendant, stressed in mitigation that the defendant was co-operative with the Police upon arrest.  As to why she failed to surrender on 2 December 2013, Mr Ng said that the defendant had mistaken about the time of the court proceedings.  She had wanted to surrender to Police but was persuaded not to by her friend.  Mr Ng said that the defendant had wanted to surrender after the Valentine’s Day in 2014 but was re-arrested before she could do so.

Sentencing considerations and starting points

7.As regards Charges 1 to 3, trafficking in persons is a vicious offence as it involves a callous disregard of the dignity of the person concerned, especially when it carries with it an element of sexual exploitation.  It is also an offence which has attracted a growing international attention.  As such, the Court has to send out a strong signal that Hong Kong will not tolerate any form of human trafficking, be it in the form of importation or exportation.  In my view, deterrence is an important sentencing consideration for this type of offence.

8.That said, there has been no tariff for the offence and there are not many sentencing authorities for similar cases.  That is understandable as the sentence depends largely on the facts of the case in question which, as the Court of Appeal said in HKSAR v Lau Chi Yui & Anor (CACC 148/2004), can vary from case to case in any number of ways.  In R v Wong Fu Keung (CACC 158/1996), the applicant was convicted after trial of having assisted in the passage within Hong Kong of two female unauthorised entrants from the mainland and also of trafficking them into Hong Kong for the purpose of prostitution.  The Court of Appeal refused to interfere with a total sentence of 3 years’ imprisonment by way of concurrent terms of three years on the first charge and 2½ years’ imprisonment on the second.  The judgment of the Court of Appeal did not give the age of the two unauthorised entrants, but described them as “young women”. 

9.I note also that Wong Fu Keung’s case was decided at the time when the maximum sentence for the offence was 7 years’ imprisonment.  The maximum sentence has been increased to 10 years’ imprisonment in 1998.[1] This shows that the Legislature has since taken a more serious view of the offence.

10.In HKSAR v Lau Chi Yui & Anor, ante, the defendants in that case arranged for a girl, who was then aged 16, to work in a karaoke establishment in Japan.  Before departure, the girl was told that her duties in the karaoke bar would be to accompany customers whilst they were drinking. However, as matters developed, the girl was soon required to provide sexual services to customers of the karaoke establishment.  The defendants arranged a visa for the girl, made the arrangements for the air tickets, two of them also accompanied her on the plane to Tokyo and from there to Yokohama to meet the proprietress of the karaoke establishment.  In due course, the girl had sexual intercourse with between twenty and thirty customers of the karaoke establishment before she was instructed to return to Hong Kong.  This was because of complaints to police which had been made by members of the girl’s family.  The trial judge, imposed on each of the defendants a sentence of 3 years imprisonment, taking into account the element of deterrence, which, the Court of Appeal said, was fully justified.  The Court of Appeal also said that the sentence was appropriate but, in view of the girl’s age, it might well have been longer.

11.In the present case, the Thai women were all of full age.  A was aged 18, B was 22, C was 27 and D was 36.  They were willing participants of the trafficking activities in that they knew full well what they would be asked to do in Hong Kong.  Viewing in this light, the present case is not as serious as Lau Chi Yui’s case.  Yet, I cannot ignore the existence of serious exploitation in the present case.  The defendant admitted that the prostitutes would provide sexual services to each patron at HK$300, that she would charged HK$280 as her commission for their first 50 or 70 clients and that thereafter she would charge HK$150 as her commission.  Based on the above, I adopt 32 months’ imprisonment as the respective starting point of Charges 1 to 3. 

12.As regards Charge 4, which is managing a vice establishment, I note that the maximum sentence on conviction on indictment is 10 years imprisonment. Again there has been no tariff for this offence.  In HKSAR v Lam Sze Kei & Another [2005] 3 HKLRD 274, which was a magistracy appeal, Deputy Judge A To (as he then was) said, at paragraph 15 of his judgment, that in considering the starting point, regard should be had to the scale of the vice establishment, the mode of the operation, the sexual services provided, the area of the premises, the number of employees, the number of prostitutes, the number of patrons, the fees of the service, the profit and the turnover.  An ordinary vice establishment does not employ more than 5 employees and not more than 10 prostitutes.  The mode of operation is relatively simple.  The learned Judge considered that an appropriate starting point for managing that kind of vice establishment would be 12 months’ imprisonment.  The starting point could be adjusted according to the scale and mode of operation of the vice establishment in question.  Moreover, the starting point may also be raised for the presence of aggravating factors including the age of the prostitutes employed, whether they were illegal immigrants and whether they were employable in Hong Kong.[2] Lam Sze Kei’s case has been followed in subsequent cases including HKSAR v Ng Kwok Wah (transliteration)[3] and HKSAR v Chong Sui Keung (transliteration).[4]  In the latter case, Woo DJ compiled a table of a series of similar cases on sentencing to which I am greatly indebted.  

13.In the present case, on any view the defendant’s vice establishment was a small operation.  I take into account the fact that premises was about 250 square feet in size with one sitting room and two bedrooms, one kitchen and one bathroom, that there were 4 Thai prostitutes who were visitors not permitted to work in Hong Kong and one of them had overstayed, that two of the prostitutes had not yet received any patrons and that there were no other employees working in the premises.  I also take into account the fact that the defendant had tried to attract business by posting the photographs of the Thai women on a website and that in the space of two weeks between 20 July 2013 and 3 August 2013, the defendant was able to make HK$18,680 out of B and HK$6,450 out of A. The figures are reflective of the number of patrons that A and B had received. In all the circumstances, I adopt 15 months imprisonment as the starting point of Charge 4.

14.As regards Charge 5, which is failure to surrender, I note that it carries a maximum sentence of 12 months’ imprisonment on indictment.  The fact that the defendant had jumped bail gives rise to two consequences: (i) it rendered the administration of justice more costly and more time-consuming and therefore the court is entitled to exercise its discretion by reducing the percentage of discount that she would otherwise be granted; and (ii) by absconding, the defendant had committed a fresh offence and has to be punished separately.  See HKSAR v Ko Chun Hung (CACC 71/2007), which is applied in HKSAR v Lam Kin Chung [2007] 2 HKC 451.

15.Having regard to the sentencing authorities cited above and the fact that the defendant had absconded for about 2 months, I adopt 3 months’ imprisonment as the starting point for Charge 5.

Sentence

16.I have considered the mitigation advanced by Mr Ng on behalf of the defendant.  In my view, the only mitigation factor is the defendant’s guilty plea which would cover her co-operation with the police after the arrest. However, as regards Charges 1 to 4, I reduce the percentage of discount for plea to something slightly less than 22% because of the defendant’s absconding. 

17.The defendant is sentenced as follows:-

(i) for Charges 1 to 3, a reduction of 7 months is granted from their respective starting point of 32 months, resulting in 25 months’ imprisonment on each charge;

(ii) for Charge 4, a reduction of 3 months and 8 days is granted from the starting point of 15 months, resulting in an imprisonment term of 11 months and 22 days; and

(iii) for Charge 5, the full one-third discount is granted, resulting in 2 months’ imprisonment.

18.I consider that there is some degree of overlap between the criminality of Charges 1 to 3 and that of Charge 4, so that it is appropriate to order that the sentences of these two groups of offences should run partly concurrently and partly consecutively.  I also have regard to the issue of totality.  In the circumstances, I order that two months each of the sentences of Charges 2 and 3 be consecutive to the sentence of Charge 1; 5 months of the sentence of Charge 4 be consecutive to the combined sentence of Charges 1 to 3; and the 2 months of Charge 5 be wholly consecutive to the combined sentence of all the other charges. Therefore, the total sentence of the defendant is (25+2+2+5+2) 36 months’ imprisonment, a sentence which, I am satisfied, reflect the overall criminality of the defendant.