HKSAR v. Cheung Yuk Ha

DCCC 193/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 193 OF 2013

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Reasons for Sentence

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1.D1 was convicted after trial of one charge of Managing a vice establishment, contrary to s.139(1)(b) of the Crimes Ordinance, Cap.200.

Summary of facts

2.D1 was the tenant of a premises. There were multiple bunk beds inside the premises. D1 sub-let the bed spaces to women and then made arrangements on the premises for their prostitution.

3. According to s.117(3), a premises which was used wholly or mainly in connection for the arranging of prostitution is within the definition of a vice establishment. On that basis, I found that the premises was being kept as a vice establishment in the relevant period and that D1 had managed it as such.

Previous convictions

4.D1 has one spent conviction for breach of condition of stay back in 2000 when she was fined $500. For the purpose of sentencing in the present case, I do not take that as an aggravating factor.

Mitigation

5.The defendant is 39 with a 13 year old daughter.

6. Mr. Yip for the defendant submitted the following in mitigation. There is no evidence to show that the defendant had coerced anyone into doing any illegal act. There is no evidence to show that the defendant was part of any larger scale operation. Only one premises was involved which she rented out as a dormitory. There was also no connection to triads.

Sentencing cases

7.Mr. Yip referred me to the case of HKSAR v Chan Chung Por, HCMA 1053/2005. There Deputy Judge Poon (as she then was) referred to various decided cases and agreed with the learned magistrate’s finding that the usual sentence for a charge of managing a vice establishment was 6 months’ imprisonment within a range of 3 to 18 months’ imprisonment.

8.Poon DJ referred to the judgment of To DJ (as he then was) in one of the cases where he set out various factors to be considered when sentencing in an assisting to manage a vice establishment charge:

“It can be seen from the cases of HKSAR v. Lee Tang Yau and HKSAR v. Cheung Chiu Choi & Another that the courts generally agree that the starting point for the offence of managing a vice establishment should be 12 months’ imprisonment. In my view, in determining the starting point, the magistrate should consider factors such as the scale of the relevant vice establishment, its modus operandi, the sexual services it provided, the floor area of the premises, the number of employees, the number of prostitutes, the number of customers, the fees charged, the profit earned and the sales figures. Vice establishments usually hire fewer than 5 employees and fewer than 10 prostitutes and have a relatively simple mode of management. For the offence of managing a vice establishment of this scale, the appropriate starting point should in my view be 12 months’ imprisonment. It is open to the magistrate to determine the appropriate starting point having regard to the size and modus operandi of the relevant vice establishment. Furthermore, the magistrate may consider increasing the starting point if there are other aggravating factors such as the age of the prostitutes being hired, whether they are illegal residents, and whether they are employable in Hong Kong. The starting point for the offence of assisting in the management of such vice establishment may be lower than that for the offence of managing it, but it all depends on the nature and extent of the assistance provided by the defendant.”

9.Poon DJ then considered that the presence of two-way permit holders working as prostitutes on the managed premises as an aggravating factor:

“Everyone knows that a person entering Hong Kong on a two-way permit is prohibited from taking up employment in Hong Kong. As mentioned above, those who manage a vice establishment are providing employment opportunities to these people who cannot work in Hong Kong, enticing them to work here and take the risk of breaching their conditions of stay. In this respect, those who hire two-way permit holders to work as prostitutes at a vice establishment are no less culpable than those who hire illegal immigrants to work as prostitutes at a vice establishment.”

10.Mr. Yip agrees that the factors mentioned by To DJ are the proper factors to consider in our present case.

11.The prosecution referred to the case of HKSAR v Lee Cho Keung & Others, CAAR 2/2003. Mr. Yip submitted that the facts in Lee Cho Keung are far more serious than our present case. This is what the Court of Appeal said:

“15. This was no ordinary or simple vice establishment. This was a large operation involving a significant number of prostitutes and a stream of customers [1320 in a 3 week period]; the use of several premises; four different floors, 22 rooms; and it was also a sophisticated operation involving the generation of substantial sums of money within a matter of weeks; an operation that ran promotional campaigns requiring the visits of photographers to take nude photographs of the women for the purpose of advertisement; and those who were actively involved in its functioning must self-evidently have been aware of the scale of the operation in which they were involved.”

12.The Court of Appeal considered that an appropriate starting point for the supervisor of the establishment was 3 and a half years’ imprisonment, whereas for those with lesser roles was that of 2 years’ imprisonment.

13.Mr. Yip accepts that the court's sentence can be based on the fact that 9 of the women found on the premises on the night of the raid were subsequently charged with and convicted of breach of condition of stay by way of working as a prostitute. Mr. Yip's submission is that even on that basis, the case is still much less serious than that of Lee Cho Keung.

Sentence

14.The maximum sentence for an indictment under s.139(1)(b) is that of 10 years’ imprisonment. There are no tariff sentences. I accept Mr. Yip's submission that the usual sentence for an offence under s.139(1)(b) at the magistracy level is that of between 3 to 18 months' imprisonment.

15.I find that 9 of the women found on the premises to have been engaging in prostitution were two-way permit holders from mainland China, which is an aggravating factor.

16.I agree with Mr. Yip's submission that the factual situation in the case of Lee Cho Keung is more serious than in our present case.

17.In relation to the factors mentioned by To DJ above, in our present case, we do not have evidence as to the amount of money involved in the operation of the vice establishment such as sales figures or profit margin, but we do have evidence that for each of the prostitutes that the defendant arranged, they would be charging something in the range of $1,500 to $2,000 and that the defendant would then take a commission of 20% from that amount (“5 take 1”). This is not a small amount when some 20 to 30 girls were involved, as suggested by the evidence of the undercover Police officer, and the defendant telling the undercover Police officer that there were ‘more girls coming’ just before the raid. It must also not be forgotten that on top of the commission the defendant was charging the girls for their accommodation.

18.Although the defendant was not the landlord of the premises, she was the person who leased the premises from Madam Chu. The defendant was the person who sub-let the bed spaces to the women. The evidence is that, as at the raid on 5th December, there were some 35 women found on the premises (not counting D1, D2 and the woman who entered the premises together with D2). There were 11 bunk beds in the premises that was partitioned into 5 rooms plus a living room.

19.There was just one person employed by the defendant to provide cleaning and cooking service to the girls. I find that the management was of a relatively simple mode. The main consideration must be the number of prostitutes being arranged and the fact that 9 of them were found on the night to have been two-way permit holders.

20.I find that taking into consideration all the circumstances of the case, the defendant was managing a medium sized operation as the sole perpetrator. I find that an immediate custodial sentence is necessary given the scale of the operation. I find that an appropriate starting point is that of 2 years’ imprisonment.

21.Given that the defendant was convicted after trial, there will be no discount to this sentence, and the defendant is sentenced to 2 years’ imprisonment accordingly.