HKSAR v. Nyamdoo Zoljargal

HCMA 157/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 157 OF 2014

(ON APPEAL FROM TMCC 4209/2013)

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J U D G M E N T

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1.This is an appeal against sentence.

2.The appellant pleaded guilty to two charges of procuring a woman for an unlawful sexual act by false pretences, contrary to section 120(1) of the Crimes Ordinance.  The magistrate took a starting point of 12 months’ imprisonment and reduced it to 8 months because of the plea of guilty.  The appellant was in breach of a suspended sentence of 2 months in respect of two charges of criminal damage.

3.The facts giving rise to the charges contrary to section 120 were these: that on 10 December 2013, at 5.30 in the morning, the appellant visited a one-woman brothel and engaged the services there of a prostitute, agreeing by his conduct to pay $350 for an act of sexual intercourse.  That occurred.  He was satisfied such that he repeated the conduct and incurred a further $350 debt.  When it came to time to leave, it became clear he could not pay.  In fact, he had no money at all upon him.

4.The appellant is a national of Mongolia and he is here in Hong Kong as a torture claimant.

5.The police were called.  It appears that he did not try to run away.  He was arrested and he has been in custody ever since.  Today is 13 May 2014.

6.It is common ground that even though the Ordinance under which he was prosecuted dealt with sexual misconduct, the real gravamen of the case against this appellant was not sexual, it was economic. He merely did not pay the bill.

7.In the circumstances, especially where the lady cannot sue for her services, and especially where he had obviously intended it from the beginning because he had no money, it was a very unattractive offence.  But where the crime is, in essence, economic, not paying a $700 bill, I judge that the starting point taken by the magistrate of 12 months’ imprisonment was obviously too long.

8.As regards the breach of the suspended sentence, the respondent is unable to put before me today anything concerning the facts of it.  It is apparent that the magistrate was unaware of the facts of that suspended sentence.  No suspended sentence should ever be implemented without the court that implements it knowing the facts of it.  It should not have happened that way and I suspect it happens in fact in Hong Kong quite a lot.

9.Be that as it may, the appellant does not want an adjournment today for me to find out what the facts were and he wants his appeal disposed of today.  I can understand why.

10.Working out what the right starting point is for conduct like this is not easy but I am spared that task because the length of time that this man has been in custody is obviously sufficient to meet the gravity of his offence.

11.I was minded to make an order of immediate release without having to specify a sentence.  The respondent has asked me not to do that for administrative reasons.  Accordingly, what I shall do to achieve this man’s immediate release today is I shall reduce the sentences of 8 months’ imprisonment down to ones of 2 months’ imprisonment, having taking a starting point of 3 months.  But I wish to make it absolutely clear that in saying that the starting point was 3 months, I have only chosen that because it lets this man have his liberty today.

12.I shall leave the suspended sentence in place, so that is 2 months plus 2 months and the total is 4 months. Because he has been in custody for over 5 months, obviously he will be released today. 

13.Mr Nyamdoo, your appeal is allowed to the extent that the sentences of 8 months’ imprisonment in respect of the two charges of procuring a woman for an unlawful sexual act, they are reduced to 2 months. 

14.With the addition of the suspended sentence of 2 months, the total therefore is 4 months’ imprisonment.  That will result today in your immediate release.

(Discussion with appellant re debt incurred)

15.After some discussion with the appellant, he tells me he now has $2,000 out of which he is willing to pay $700 compensation, and I make that order in favour of PW1.

(Discussion with appellant and counsel)

16.The compensation of $700 is payable within 7 days.

Mr Prakash L Daryanani, Senior Public Prosecutor of the Department of Justice, for the Respondent.

Appellant appeared in person.