DCCC1219/2009 HKSAR v. ASPURIA CARMEN BAO-ILAN AND ANOTHER - LawHero
DCCC1219/2009
HKSAR v. ASPURIA CARMEN BAO-ILAN AND ANOTHER
區域法院（刑事）H H Judge Tallentire22/3/2010
DCCC1219/2009
A A
DCCC1219/2009
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1219 OF 2009
C C
----------------------
D D
HKSAR
E v. E
Aspuria Carmen Bao-ilan (D1)
F Carigtan Mercedes Sambada (D2) F
also known as
G Carigtan Mercedes Sambaoa G
----------------------
H H
Before: H H Judge Tallentire
Date: 23 March 2010 at 10.45 am
I Present: Mr A M Omar Jr, Counsel on fiat, for HKSAR I
Mr Gary T K Lam, instructed by Ivan Tang & Co., for
J the 1st Defendant J
Mr John Patrick Marray, instructed by Messrs Thomas Li
& Yu, assigned by the Director of Legal Aid, for the
K 2nd Defendant K
Offence: (1) Conspiracy to traffic in persons to Hong Kong (串謀
L 販運他人進入香港) L
(2) & (3) Aiding and abetting the breach of condition
of stay (協助和教唆違反逗留條件)
M M
N
--------------------- N
Reasons for Sentence
O O
---------------------
P P
1. D1 and D2, you were convicted after trial of one joint
Q offence of conspiracy to traffic in persons, contrary to Q
sections 129(1), 159A and 159C of the Crimes Ordinance, Cap.200,
R R
and two offences of jointly aiding and abetting the breach of
conditions of stay, contrary to section 41 of the Immigration
S S
Ordinance, Cap.115 and by virtue of the Immigration Regulations,
T Cap.115A, and section 89 of the Criminal Procedure Ordinance, T
Cap.221.
U U
CRT34/23.3.2010/LT 1 DCCC1219/2009/Sentence
V V
A A
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
B B
each conspired with each other to bring the two victims into
C Hong Kong to be employed as prostitutes in your club. You were C
both fully aware that neither was able to take up paid or unpaid
D employment. The evidence showed that they served for three D
nights in the club. The evidence also shows that they were
E E
allowed to leave when they demanded to do so. At no time was
threats or force ever used against them.
F F
G 3. Both of you are of hitherto clear record. G
H 4. An application to enhance sentence was made by the H
prosecution under section 27(2)(a) of the Organised and Serious
I I
Crimes Ordinance, Cap.455. The basis of that application was two
victim impact reports prepared by Dr Ephraim Tsoi(?), police
J J
clinical psychologist. Mr Omar simply placed those two reports
K
before me and asked that consideration be given to enhancing the K
sentence of each or either of you defendants in accordance with
L the provisions of section 27(2)(a) of the Organised and Serious L
Crimes Ordinance, as I have previously mentioned.
M M
5. Mr Lam, on behalf of you, D1, and Mr Marray, on behalf
N N
of you, D2, addressed me and provided written final submissions
to the court in mitigation. On behalf of their respective
O O
clients they placed before me mitigation and opposed the
P application to enhance sentence. This was on the basis, as I P
understand it, that this was not an appropriate case where what
Q may be described as a Draconian power should be invoked. Q
R R
6. D1, I deal first of all with your position. You were,
of course, represented by Mr Lam.
S S
T 7. You are 48 years of age, you have hitherto a clear T
record, and resident in Hong Kong since 1986, when you came as a
U domestic helper. In 1989, you married a Hong Kong resident and U
CRT34/23.3.2010/LT 2 DCCC1219/2009/Sentence
V V
A A
gained your own residency in the 1990s. You live with your
mother and two brothers. Your son lives and works in Macau. You
B B
opened this club known as the El Cid Club in 1992 and it has
C operated without problems until your arrest. C
D 8. Quite rightly, Mr Lam addressed me to the effect that D
there is no tariff for this type of offence. In fact, it is fair
E E
to say that there are very few decided cases under this section.
F F
9. I was referred to the case of HKSAR v Lau Chi Yu and
G Another, CACC148/2005, where a starting point of 3 years’ G
imprisonment was held not to be manifestly excessive. However, I
H do agree there were marked differences in that case from the H
present one. In my opinion, that was a much more serious
I I
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
J J
intercourse with customers prior to being released.
K K
10. I was also referred to another authority,
L R v Soonthorn Chookiat Pravit, CACC301/1991, so it is an old L
case, and in this case 2 years was upheld for a Thai man posing
M as a lady’s husband in order to bring her into Hong Kong. The M
purpose of bringing her in to Hong Kong was to install her in a
N N
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
O O
penalty was one of 7 years.
P P
11. Again, in my opinion, this was a slightly more serious
Q case than the one we are dealing with today in that it involved Q
a foreign national escorting another foreign national into Hong
R R
Kong to work as a prostitute. That establishes a clear
international dimension.
S S
T 12. Mitigating factors in relation to the offence were T
urged upon me. These included the lack of coercion or force with
U the victims free to go at any stage, having entered Hong Kong U
CRT34/23.3.2010/LT 3 DCCC1219/2009/Sentence
V V
A A
legally in the first place. The evidence suggested very
strongly, and I give the benefit of the doubt to you on this,
B B
that at the end of their 14 day period of lawful stay they would
C have left Hong Kong. There is nothing to suggest that you would C
have kept them beyond the time.
D D
13. I noted also, D1, that after working for three days in
E E
your club you apologised to them as not being aware that they
were unwilling to work in this particular trade. This supports
F F
the contention that you, D1, nor indeed D2, took any part in
G luring the women here by false pretences or misleading them. The G
victims were both mature ladies in their 20s. I note that no
H acts of sexual intercourse actually took place, and there was no H
international dimension as you, D1, are a Hong Kong resident. I
I I
say that even though the victims were not.
J J
14. Mr Lam on behalf of D1 submitted the starting point
K
should be somewhat less than the two authorities he cited. K
L 15. Referring to the applications for enhancement, he said L
these were not appropriate cases for such enhancement. Even if I
M accepted the psychological reports, the major trauma resulted M
from the cheating and misleading by one Aunt Mila, not by either
N N
of you two defendants.
O O
16. Perhaps in fairness I should pause a moment and say I
P do accept those reports and I express my great sympathy for the P
two victims. They were clearly lured to Hong Kong expecting
Q something different from what actually took place and have Q
suffered a great deal of trauma, and whilst it is a complex
R R
situation and others are involved, you two are not blameless.
S S
17. Mr Marray on behalf of you, D2, also entered
T mitigation and opposed the application for enhancement. T
U U
CRT34/23.3.2010/LT 4 DCCC1219/2009/Sentence
V V
A A
18. He told me, and this is supported by the evidence,
that you had been employed as a domestic helper until June 2009,
B B
and you are of clear record. You reside with D1 and her family.
C C
19. The first physical contact that you had with the two
D victims was at the ferry terminal. There was no actual evidence D
of you having gained from their prostitution in the material
E E
sense, nor was there any evidence of you having financial
interest in the El Cid Club, though the evidence clearly showed
F F
that you were employed at that club. However, it is abundantly
G clear that you took the victims to the club and you were G
instrumental in them wearing skimpy clothing and the other
H matters which were referred to. One of the most objectionable H
pieces of evidence against you was your suggestion to them that
I I
they might like to work as prostitutes if they were to give it a
chance.
J J
K
20. I noted that at all times the victims were free to K
leave, that you at no time used threats to pressurise them to
L remain. L
M 21. The problems that the victims had faced in the M
Philippines cannot be laid at your door. These are the problems
N N
that have occurred since the commission of these offences. The
court simply does not have enough information on that. It is
O O
clear to me, according to the evidence, that others were more
P blameworthy in misleading the victims than you were. P
Q 22. Mr Marray concluded by inviting me to look at the Q
facts and coming to the conclusion that these offences are at
R R
the lowest end of the scale, whilst realistically accepting that
a prison sentence is inevitable in these circumstances.
S S
T 23. I agree with that proposition. I cannot envisage any T
circumstances when this offence would not attract a prison
U sentence. U
CRT34/23.3.2010/LT 5 DCCC1219/2009/Sentence
V V
A A
24. I turn now to the sentence itself.
B B
C 25. These are serious and unpleasant offences involving C
exploitation of women for financial gain. Having said that, the
D evidence strongly suggests that the victims were misled into D
coming to Hong Kong for the purpose of prostitution by other
E E
persons than yourselves. The evidence of your involvement in the
arrangements to bring them here and your assisting their entry
F F
is overwhelming, as is your part in their illegal employment
G upon arrival. G
H 26. I do accept that in this case the victims were mature H
ladies, there was no element of coercion, force or violence used
I I
against them, they were free to make contact with whomsoever
they wished, and they had no restrictions placed upon their
J J
liberty. Also, it is clear that they were free to refuse to
K
accept the work as a prostitute - indeed, they did so - and they K
received an apology from you, D1, when they exercised their
L right. L
M 27. I am prepared to accept that both of you did honestly M
believe that the victims had come in full knowledge of what
N N
their employment was to be. It is clear also that there was a
proper structure of remuneration for what is improper work.
O O
P 28. The conclusion I come to is that whilst these are P
serious offences, they are indeed at the lower end of the scale.
Q Whilst expressing profound sympathy for the victims, there is a Q
lack of aggravating features in this case. I do reflect that it
R R
is a pity you put them through the trauma of the witness box,
but that of course is your right. That they have suffered
S S
psychological damage is unchallengeable, in my opinion, but that
T can be laid at the door of others to a larger extent, although I T
make the point that you are far from blameless because of the
U purpose for which you brought them to Hong Kong. U
CRT34/23.3.2010/LT 6 DCCC1219/2009/Sentence
V V
A A
29. Taking all matters into account, I do not deem this to
B B
be an appropriate case to warrant enhancement, lacking as it
C does any aggravating features in the commission of the offence C
itself. The penalties provided by the section are more than
D adequate to deal with the criminality in this case. D
E E
30. D1, you are the club owner and the boss and you are
clearly, in my opinion, the more culpable.
F F
G 31. Charges 2 and 3 are, in my opinion, natural and G
logical extensions of the 1st charge. It was inevitable, having
H brought them here in the circumstances that they were brought H
here, that you would commit those offences.
I I
32. Taking all matters into account, D1, on Charge 1, you
J J
will go to prison for 21 months, and D2, you will go to prison
K
for 18 months. K
L 33. On Charges 2 and 3, you will each go to prison for L
4 months on each, concurrent to each other and concurrent to
M Charge 1. M
N N
34. To make it entirely clear, that means you, D1, will
serve 21 months, and you, D2, 18 months.
O O
P P
Q Q
Tallentire
District Judge
R R
S S
T T
U U
CRT34/23.3.2010/LT 7 DCCC1219/2009/Sentence
V V
A A
DCCC1219/2009
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1219 OF 2009
C C
----------------------
D D
HKSAR
E v. E
Aspuria Carmen Bao-ilan (D1)
F Carigtan Mercedes Sambada (D2) F
also known as
G Carigtan Mercedes Sambaoa G
----------------------
H H
Before: H H Judge Tallentire
Date: 23 March 2010 at 10.45 am
I Present: Mr A M Omar Jr, Counsel on fiat, for HKSAR I
Mr Gary T K Lam, instructed by Ivan Tang & Co., for
J the 1st Defendant J
Mr John Patrick Marray, instructed by Messrs Thomas Li
& Yu, assigned by the Director of Legal Aid, for the
K 2nd Defendant K
Offence: (1) Conspiracy to traffic in persons to Hong Kong (串謀
L 販運他人進入香港) L
(2) & (3) Aiding and abetting the breach of condition
of stay (協助和教唆違反逗留條件)
M M
N
--------------------- N
Reasons for Sentence
O O
---------------------
P P
1. D1 and D2, you were convicted after trial of one joint
Q offence of conspiracy to traffic in persons, contrary to Q
sections 129(1), 159A and 159C of the Crimes Ordinance, Cap.200,
R R
and two offences of jointly aiding and abetting the breach of
conditions of stay, contrary to section 41 of the Immigration
S S
Ordinance, Cap.115 and by virtue of the Immigration Regulations,
T Cap.115A, and section 89 of the Criminal Procedure Ordinance, T
Cap.221.
U U
CRT34/23.3.2010/LT 1 DCCC1219/2009/Sentence
V V
A A
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
B B
each conspired with each other to bring the two victims into
C Hong Kong to be employed as prostitutes in your club. You were C
both fully aware that neither was able to take up paid or unpaid
D employment. The evidence showed that they served for three D
nights in the club. The evidence also shows that they were
E E
allowed to leave when they demanded to do so. At no time was
threats or force ever used against them.
F F
G 3. Both of you are of hitherto clear record. G
H 4. An application to enhance sentence was made by the H
prosecution under section 27(2)(a) of the Organised and Serious
I I
Crimes Ordinance, Cap.455. The basis of that application was two
victim impact reports prepared by Dr Ephraim Tsoi(?), police
J J
clinical psychologist. Mr Omar simply placed those two reports
K
before me and asked that consideration be given to enhancing the K
sentence of each or either of you defendants in accordance with
L the provisions of section 27(2)(a) of the Organised and Serious L
Crimes Ordinance, as I have previously mentioned.
M M
5. Mr Lam, on behalf of you, D1, and Mr Marray, on behalf
N N
of you, D2, addressed me and provided written final submissions
to the court in mitigation. On behalf of their respective
O O
clients they placed before me mitigation and opposed the
P application to enhance sentence. This was on the basis, as I P
understand it, that this was not an appropriate case where what
Q may be described as a Draconian power should be invoked. Q
R R
6. D1, I deal first of all with your position. You were,
of course, represented by Mr Lam.
S S
T 7. You are 48 years of age, you have hitherto a clear T
record, and resident in Hong Kong since 1986, when you came as a
U domestic helper. In 1989, you married a Hong Kong resident and U
CRT34/23.3.2010/LT 2 DCCC1219/2009/Sentence
V V
A A
gained your own residency in the 1990s. You live with your
mother and two brothers. Your son lives and works in Macau. You
B B
opened this club known as the El Cid Club in 1992 and it has
C operated without problems until your arrest. C
D 8. Quite rightly, Mr Lam addressed me to the effect that D
there is no tariff for this type of offence. In fact, it is fair
E E
to say that there are very few decided cases under this section.
F F
9. I was referred to the case of HKSAR v Lau Chi Yu and
G Another, CACC148/2005, where a starting point of 3 years’ G
imprisonment was held not to be manifestly excessive. However, I
H do agree there were marked differences in that case from the H
present one. In my opinion, that was a much more serious
I I
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
J J
intercourse with customers prior to being released.
K K
10. I was also referred to another authority,
L R v Soonthorn Chookiat Pravit, CACC301/1991, so it is an old L
case, and in this case 2 years was upheld for a Thai man posing
M as a lady’s husband in order to bring her into Hong Kong. The M
purpose of bringing her in to Hong Kong was to install her in a
N N
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
O O
penalty was one of 7 years.
P P
11. Again, in my opinion, this was a slightly more serious
Q case than the one we are dealing with today in that it involved Q
a foreign national escorting another foreign national into Hong
R R
Kong to work as a prostitute. That establishes a clear
international dimension.
S S
T 12. Mitigating factors in relation to the offence were T
urged upon me. These included the lack of coercion or force with
U the victims free to go at any stage, having entered Hong Kong U
CRT34/23.3.2010/LT 3 DCCC1219/2009/Sentence
V V
A A
legally in the first place. The evidence suggested very
strongly, and I give the benefit of the doubt to you on this,
B B
that at the end of their 14 day period of lawful stay they would
C have left Hong Kong. There is nothing to suggest that you would C
have kept them beyond the time.
D D
13. I noted also, D1, that after working for three days in
E E
your club you apologised to them as not being aware that they
were unwilling to work in this particular trade. This supports
F F
the contention that you, D1, nor indeed D2, took any part in
G luring the women here by false pretences or misleading them. The G
victims were both mature ladies in their 20s. I note that no
H acts of sexual intercourse actually took place, and there was no H
international dimension as you, D1, are a Hong Kong resident. I
I I
say that even though the victims were not.
J J
14. Mr Lam on behalf of D1 submitted the starting point
K
should be somewhat less than the two authorities he cited. K
L 15. Referring to the applications for enhancement, he said L
these were not appropriate cases for such enhancement. Even if I
M accepted the psychological reports, the major trauma resulted M
from the cheating and misleading by one Aunt Mila, not by either
N N
of you two defendants.
O O
16. Perhaps in fairness I should pause a moment and say I
P do accept those reports and I express my great sympathy for the P
two victims. They were clearly lured to Hong Kong expecting
Q something different from what actually took place and have Q
suffered a great deal of trauma, and whilst it is a complex
R R
situation and others are involved, you two are not blameless.
S S
17. Mr Marray on behalf of you, D2, also entered
T mitigation and opposed the application for enhancement. T
U U
CRT34/23.3.2010/LT 4 DCCC1219/2009/Sentence
V V
A A
18. He told me, and this is supported by the evidence,
that you had been employed as a domestic helper until June 2009,
B B
and you are of clear record. You reside with D1 and her family.
C C
19. The first physical contact that you had with the two
D victims was at the ferry terminal. There was no actual evidence D
of you having gained from their prostitution in the material
E E
sense, nor was there any evidence of you having financial
interest in the El Cid Club, though the evidence clearly showed
F F
that you were employed at that club. However, it is abundantly
G clear that you took the victims to the club and you were G
instrumental in them wearing skimpy clothing and the other
H matters which were referred to. One of the most objectionable H
pieces of evidence against you was your suggestion to them that
I I
they might like to work as prostitutes if they were to give it a
chance.
J J
K
20. I noted that at all times the victims were free to K
leave, that you at no time used threats to pressurise them to
L remain. L
M 21. The problems that the victims had faced in the M
Philippines cannot be laid at your door. These are the problems
N N
that have occurred since the commission of these offences. The
court simply does not have enough information on that. It is
O O
clear to me, according to the evidence, that others were more
P blameworthy in misleading the victims than you were. P
Q 22. Mr Marray concluded by inviting me to look at the Q
facts and coming to the conclusion that these offences are at
R R
the lowest end of the scale, whilst realistically accepting that
a prison sentence is inevitable in these circumstances.
S S
T 23. I agree with that proposition. I cannot envisage any T
circumstances when this offence would not attract a prison
U sentence. U
CRT34/23.3.2010/LT 5 DCCC1219/2009/Sentence
V V
A A
24. I turn now to the sentence itself.
B B
C 25. These are serious and unpleasant offences involving C
exploitation of women for financial gain. Having said that, the
D evidence strongly suggests that the victims were misled into D
coming to Hong Kong for the purpose of prostitution by other
E E
persons than yourselves. The evidence of your involvement in the
arrangements to bring them here and your assisting their entry
F F
is overwhelming, as is your part in their illegal employment
G upon arrival. G
H 26. I do accept that in this case the victims were mature H
ladies, there was no element of coercion, force or violence used
I I
against them, they were free to make contact with whomsoever
they wished, and they had no restrictions placed upon their
J J
liberty. Also, it is clear that they were free to refuse to
K
accept the work as a prostitute - indeed, they did so - and they K
received an apology from you, D1, when they exercised their
L right. L
M 27. I am prepared to accept that both of you did honestly M
believe that the victims had come in full knowledge of what
N N
their employment was to be. It is clear also that there was a
proper structure of remuneration for what is improper work.
O O
P 28. The conclusion I come to is that whilst these are P
serious offences, they are indeed at the lower end of the scale.
Q Whilst expressing profound sympathy for the victims, there is a Q
lack of aggravating features in this case. I do reflect that it
R R
is a pity you put them through the trauma of the witness box,
but that of course is your right. That they have suffered
S S
psychological damage is unchallengeable, in my opinion, but that
T can be laid at the door of others to a larger extent, although I T
make the point that you are far from blameless because of the
U purpose for which you brought them to Hong Kong. U
CRT34/23.3.2010/LT 6 DCCC1219/2009/Sentence
V V
A A
29. Taking all matters into account, I do not deem this to
B B
be an appropriate case to warrant enhancement, lacking as it
C does any aggravating features in the commission of the offence C
itself. The penalties provided by the section are more than
D adequate to deal with the criminality in this case. D
E E
30. D1, you are the club owner and the boss and you are
clearly, in my opinion, the more culpable.
F F
G 31. Charges 2 and 3 are, in my opinion, natural and G
logical extensions of the 1st charge. It was inevitable, having
H brought them here in the circumstances that they were brought H
here, that you would commit those offences.
I I
32. Taking all matters into account, D1, on Charge 1, you
J J
will go to prison for 21 months, and D2, you will go to prison
K
for 18 months. K
L 33. On Charges 2 and 3, you will each go to prison for L
4 months on each, concurrent to each other and concurrent to
M Charge 1. M
N N
34. To make it entirely clear, that means you, D1, will
serve 21 months, and you, D2, 18 months.
O O
P P
Q Q
Tallentire
District Judge
R R
S S
T T
U U
CRT34/23.3.2010/LT 7 DCCC1219/2009/Sentence
V V