DCCC730/2015 HKSAR v. HEMWICHIT THANATCHA AND OTHERS - LawHero
DCCC730/2015
HKSAR v. HEMWICHIT THANATCHA AND OTHERS
區域法院（刑事）Deputy District Judge Joseph To3/3/2016
DCCC730/2015
A A
B
[English Translation – 英譯本] B
C DCCC 730/2015 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL JURDISDICTION
F F
CRIMINAL CASE NO 730 OF 2015
G __________________ G
BETWEEN
H H
HKSAR
I AND I
HEMWICHIT THANATCHA (D1)
J J
PONGPORNLAPUS PUKKAPON（ 鄧志偉） ( D 2 )
K MA Chuen（馬泉）(D3) K
LEUNG Yiu-lun（梁耀麟）(D4)
L L
__________________
M M
N
Coram: Deputy District Judge Joseph To in Court N
Date: 2:37 pm on 4 March 2016
O O
Present: Mr Jeff Ho, Counsel on fiat, for the HKSAR
P
Mr Lee Tak Tung, Paul, instructed by Messrs A M Mui & P
Kwan, assigned by the Legal Aid Department, for D1
Q Q
Mr Suen Kam Hee, instructed by Messrs Charles Chu &
R
Kenneth Sit, assigned by the Legal Aid Department, for D2 R
Mr Fung Chun Wah, Keith, instructed by Messrs Raymond
S S
Lam & Associates, assigned by the Legal Aid Department,
T
for D3 and D4 T
U U
V V
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A A
B
Offences: (1)-(6) Managing a vice establishment （ 管 理 賣 淫 場 B
C 所 ）—— D1 &D2 C
(7) Living on earnings of prostitution of others（依 靠 他 人
D D
賣 淫 的 收 入 為 生 ） —— D1 & D2
E E
(8) Controlling other persons for the purpose of prostitution
F （控 制 其 他 人 而 目 的 在 於 使 該 人 賣 淫 ）——D1 & D2 F
(9) Tenant permitting premises to be kept as a vice
G G
establishment（租 客 准 許 處 所 經 營 賣 淫 場 所 ）——D1
H (10)-(12) Tenant permitting premises to be kept as a vice H
establishment（租 客 准 許 處 所 經 營 賣 淫 場 所 ）——D2
I I
(13) Breach of condition of stay（違 反 逗 留 條 件 ）——
J J
D1
K (14) Living on earnings of prostitution of others（依 靠 他 K
人 賣 淫 的 收 入 為 生 ） ——D3
L L
(15) Tenant permitting premises to be kept as a vice
M establishment（租 客 准 許 處 所 經 營 賣 淫 場 所 ）——D3 M
N (16) Living on earnings of prostitution of others（依 靠 他 N
人 賣 淫 的 收 入 為 生 ） ——D4
O O
(17) Tenant permitting premises to be kept as a vice
P establishment（租 客 准 許 處 所 經 營 賣 淫 場 所 ）——D1 P
Q Q
R R
REASONS FOR SENTENCE
S S
T T
U U
V V
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A A
B B
Offences
C C
1. The four defendants appeared in this court on 23 February
D D
2016.
E E
2. D1 and D2 pleaded guilty to four charges of managing a vice
F F
establishment, contrary to section 139(1)(b) of the Crimes Ordinance,
G Cap 200 Laws of Hong Kong (“Charges 1 to 4”). D1 further pleaded G
guilty to two charges of tenant permitting premises to be kept as a vice
H H
establishment, contrary to section 144(1)(a) of the Crimes Ordinance,
I Cap 200 Laws of Hong Kong (“Charges 9 and 17”). Finally, she pleaded I
guilty to one more charge, breach of condition of stay, contrary to section
J J
41 of the Immigration Ordinance, Cap 115 Laws of Hong Kong (“Charge
K 13”). As for D2, in addition to Charges 1 to 4, he pleaded guilty to two K
charges of tenant permitting premises to be kept as a vice establishment,
L L
contrary to section 144(1)(a) of the Crimes Ordinance, Cap 200 Laws of
M Hong Kong (“Charges 10 and 12”). M
N N
3. D3 pleaded guilty to one charge of living on earnings of
O prostitution of others, contrary to section 137(1) of the Crimes Ordinance, O
Cap 200 Laws of Hong Kong (“Charge 14”), and one charge of tenant
P P
permitting premises to be kept as a vice establishment, contrary to section
Q 144(1)(a) of the Crimes Ordinance, Cap 200 Laws of Hong Kong Q
(“Charge 15”). Lastly, D4 pleaded guilty to one charge of living on
R R
earnings of prostitution of others, contrary to section 137(1) of the Crimes
S Ordinance, Cap 200 Laws of Hong Kong (“Charge 16”). S
T T
U U
V V
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A A
B B
4. The prosecution offered no evidence in relation to Charge 11
C
and the court found D2 not guilty of that charge, which was dismissed
C
accordingly. The prosecution applied to leave Charges 5 to 8 on file.
D D
The legal representatives of D1 and D2 raised no objection and the
E
application was granted.
E
F F
Facts
G G
5. From 7 to 8 May 2015, the police conducted an undercover
H H
operation in Yaumatei against vice activities. Five premises or locations
I were involved: I
J J
1. Flat 8, 1st floor, Agatha House, 21 Ning Po Street, Yaumetei
K “location 1” (Charges 1 and 9); K
L L
2. Flat 6, 3rd floor of the same building “location 2” (Charges 2
M and 10); M
N N
3. Flat 8, 3rd floor of the same building “location 3” (Charges 3
O and 17); O
P P
4. Flat 3, 6th floor of the same building “location 4” (Charges 4
Q and 12); and Q
R R
5. Rooms B, C and D, 2nd floor, 63 Pilkem Street “location 5”
S (Charge 15); S
T T
U U
V V
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A A
B B
In the evening of 8 May 2015, several policemen, disguised as
C
pedestrians, went to Ning Po Street and the neighbouring area to carry out
C
the undercover operation. In the course of the operation, they were
D D
subjected to solicitation from several Thai prostitutes, who took them to
E
locations 1, 2 and 3 respectively, intending to provide sexual services to
E
them and to have sexual transactions with them.
F F
G 6. At 8:15 pm on 8 May 2015, two policemen, who were at the G
junction of Shanghai Street and Ning Po Street, saw that D3 and D4
H H
arranged for six Thai girls to stand on Ning Po Street near the junction of
I Ning Po Street and Shanghai Street. At that time, D3 and D4 kept I
looking around, while the Thai girls solicited on the street by waving and
J J
smiling at the men who passed by. One to two minutes’ later, uniformed
K policemen, who were on patrol, appeared on Ning Po Street, near the K
junction of Ning Po Street and Shanghai Street. D3 and D4 instructed the
L L
girls to go to Temple Street, and the girls walked away hurriedly towards
M Temple Street. After the policemen had left, D3 instructed the girls to M
return to where they had been and they resumed soliciting. (Charges 14
N N
and 16)
O O
7. At 8:30 pm of the same evening, an undercover detective
P P
saw three Thai girls on Ning Po Street near Shanghai Street. One of the
Q girls waved at the detective and said in English, “Two hundred fifty”. Q
After that, the girl took the detective to location 2 and intended to provide
R R
sexual services to him, but the detective stopped her and put her under
S control. At this moment, a group of policemen came to the scene for S
investigation. They found another Thai girl in another room in the flat.
T T
In the course of their investigation, the girl admitted to the policemen that
U U
V V
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A A
B B
she came to Hong Kong for prostitution. In the end, the two Thai girls
C
were arrested for breach of condition of stay. (Charge 2)
C
D D
8. At about the same time, another undercover detective saw a
E
Thai girl on Ning Po Street, who said in English to him, “Two hundred
E
fifty, make love”. Then she took the detective to room A of location 3,
F F
intending to provide sexual services to him, but was stopped and put
G under control by him. In addition, another undercover detective saw G
another Thai girl in the vicinity of Ning Po Street, who similarly said in
H
English to the detective, “Two hundred fifty”, and took him to room C of H
I location 3, intending to provide sexual services to him, but the detective I
revealed his identity and put her under control. Around 8:45 pm, a group
J J
of policemen arrived at location 3. They found in room B a man, who
K was surnamed Lam, and the 3rd Thai girl in the flat. The man admitted K
that he was there whoring, and said that he was taken by the girl to room
L L
B for sexual intercourse. The policemen arrested the three Thai girls,
M who were in location 3, for breach of condition of stay and soliciting for M
an immoral purpose. (Charge 3)
N N
O 9. Since the undercover operation on Ning Po Street bore fruit, O
around 8:40 pm a group of policemen went to location 4 to investigate.
P P
They found D1, D2 and a Thai girl in the flat. D1 admitted that she and
Q D2 rented locations 1 to 3 for the Thai girls to engage in prostitution there. Q
Thereupon, the policemen arrested her for keeping a vice establishment.
R R
Under caution she said, “Sir, it’s me and Ah Dee who are responsible for
S running this vice establishment. Please don’t arrest the Thai girls”. The S
policemen found that two tablet computers and two televisions placed in
T T
U U
V V
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A A
B B
the sitting room of location 4 could be used to monitor, through CCTV
C
cameras, what was going on in locations 1, 2, 3 and 5. (Charges 1 to 4)
C
D D
10. The policemen seized a safe in a bedroom in location 4. The
E
safe contained D1’s personal belongings, some identification documents,
E
some valuable items and cash $158,160, of which $37,160 (in the form of
F F
banknotes) had small holes on them caused by stapling. In the sitting
G room of location 4 the following items were seized: I. A tenancy G
agreement about the renting of location 5 by D3. (Charge 15) II. 13
H H
electronic air tickets (the names on some of them were the same as the
I names of the Thai prostitutes involved in this case). III. Bills, receipts I
and other commercial documents about the water charge, electricity
J J
charge, gas charge, furniture expenses, fitting up expenses and wireless
K monitoring system expenses related to locations 1 to 5. IV. Tenancy K
agreements about the renting of locations 1 and 3 by D1. V. Tenancy
L L
agreements about the renting of locations 2 and 4 by D2. VI. Business
M records or pieces of paper torn from business record notebooks seized in M
location 1, 2 and 5 (on some of them D2’s fingerprints were found). VII.
N N
Seven tablet computers, televisions and monitors etc. Some of them could
O be used to monitor, through CCTV, locations 1, 2, 3 and 5. (Charges 1 to O
4)
P P
Q 11. At about 9 pm, some policemen arrived at location 1 for Q
investigation. A Thai girl opened the door. Later, the police learned that
R R
the girl came to Hong Kong as a visitor on 28 April 2015 and could stay
S until 28 May, but she was not allowed to work during her stay. The Thai S
girl admitted to the police that her purpose of coming to Hong Kong was
T T
U U
V V
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A A
B B
to engage in prostitution, so she was arrested for breach of condition of
C
stay. (Charge 1)
C
D D
12. In the small hours of 9 May 2015, a group of policemen
E
went to location 5 to investigate. They forced opened the doors of rooms
E
A to E in the flat. A Thai girl was found in each of rooms B, C and D.
F F
They all admitted that they came to Hong Kong as a visitor to engage in
G prostitution. (Charge 15) G
H H
13. In this operation, the policemen seized in locations 1, 2,
I 3 and 5 many condoms, lubricating oil, staplers and record books. When I
conducting investigation in location 1, the policemen found in a drawer
J J
five piles of banknotes. The banknotes were stapled together. Each pile
K consisted of HK$250 and the total amount was $1,250. In location 2, the K
policemen similarly found in a drawer a pile of banknotes which were
L L
stapled together, the total sum of which was $250. In location 3, the
M policemen also found seven piles of stapled-together-banknotes, of which M
six piles consisted of $250 each; one pile was $350, and there was one
N N
$50 banknote, making a total of $1,850; and in the drawer in which the
O banknotes were kept, D2’s fingerprints were found. O
P P
14. Police investigation disclosed that D1 is not a permanent
Q resident of Hong Kong. She came here on 1 April 2013 and was Q
permitted to stay until 27 April, but she did not leave before her stay
R R
expired, and so she has been in breach of condition of stay since 28 April
S 2013. (Charge 13) S
T T
U U
V V
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A A
B B
15. As the undercover operation was successful, the policemen
C
intercepted D3 and questioned him. D3 admitted that he was positioned
C
on Ning Po Street near the junction of Ning Po Street and Shanghai Street,
D D
acting as a lookout. When policemen were approaching, he would signal
E
the Thai prostitutes to go away; and when the policemen left, he would
E
signal them to come back to continue soliciting. The policemen arrested
F F
D3 for assisting in the keeping of a vice establishment. He said under
G caution, “I was just doing my work.” Subsequently, when he was being G
questioned under caution, he said that he worked as a lookout only
H H
because he had to provide for his wife and daughter. He said that D1 was
I called “Ah May”, that she was the boss and that D2 was her “husband”. I
According to him, his work was that every day at 6 pm he was to wake up
J J
the Thai girls in locations 1 to 3 and took them to Ning Po Street and the
K neighboring area to look for customers. When patrolling policemen came, K
he would tell the girls to go away. When the policemen left, he would
L L
tell them to resume working. He admitted that he had already worked for
M over one year. He knocked off at 5 am everyday. D3 added that he M
would buy food for the Thai girls and help them to carry their luggage.
N N
He knew that sexual services were provided in locations 1 to 3. About 10
O Thai girls engaged in prostitution. Each time each customer was charged O
$250 as the price for the sexual services. Everyday there were 30 to 80
P P
customers. D3’s daily wage was $800. He knew that D4 was also
Q employed by D1. Location 5 was rented by him on D1’s instruction. Q
(Charge 14)
R R
S 16. Another policeman intercepted D4 and questioned him. S
Likewise, D4 admitted that he was a lookout. That means when
T T
patrolling policemen appeared, he would warn the Thai prostitutes that
U U
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A A
B B
they should leave. When the policemen left, they would come back to the
C
same place to solicit. D4 said that his daily wage was $500. He was
C
similarly arrested for assisting in the keeping of a vice establishment.
D
Under caution he said, “I was unemployed. I just wanted to earn my D
E
living.” Subsequently, when he was being questioned under caution, he
E
said he could not find any work, so he kept watch for the Thai girls on
F F
Ning Po Street near Shanghai Street. That means when policemen were
G approaching, he would signal the Thai girls to go away, to stop soliciting G
for the time being; and at the same time he would notify D1. His working
H H
hours were 6 pm to 2 am. He knew that the Thai girls were prostitutes,
I who took customers from the street to Agatha House for sexual I
transactions. He knew that the Thai girls would record the transactions
J J
on pieces of paper, and everyday D1 would collect the records and cash
K generated from the sexual transactions. D4’s daily wage was $500. K
(Charge 16)
L L
M Mitigation submissions M
N N
D1
O O
17. D1 was born in Thailand in January 1971. She has two
P P
criminal convictions in Hong Kong. Both are the offence of breach of
Q condition of stay, for which she was sentenced in October 1996 and Q
August 1997 to two months’ and three months’ imprisonment
R R
respectively.
S S
18. By way of mitigation, Mr Lee, counsel for D1, submitted
T T
that the defendant’s present husband lived in Hong Kong, who married
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A A
B B
D1 in 2008, but that D1 did not complete all the procedures for applying
C
to be a permanent resident of Hong Kong, and that was why she
C
committed the offence referred to in Charge 13, namely breach of
D D
condition of stay. Mr Lee said D1 was 44 years old. She did not receive
E
any formal education and she went to Singapore at the age of 20 to make
E
a living by being a prostitute.
F F
G 19. After D1 came to Hong Kong in 2008, she married a Hong G
Kong resident who was born in Nepal and became a housewife. However,
H H
her husband was unemployed, so she resumed her old job and earned her
I living by being a prostitute from 2008 to 2013. In 2013, her husband I
even disappeared, but she had to take care of her elderly mother, who was
J J
in Thailand, and her young nephew and young niece; she therefore
K operated the vice establishment involved in this case. K
L L
20. Mr Lee said in mitigation that D1 was not the head of the
M vice establishment. The capital for setting up the establishment all came M
from the head, who also provided the rent for renting the premises
N N
concerned (Charges 9 and 17) and paid the expenses for buying things
O relating to prostitution. D1 also worked as a Thai interpreter to assist O
Thai girls to engage in prostitution in Hong Kong. She had a monthly
P P
wage of $12,000 and was provided with a place to live in. She lived a
Q frugal life, so she saved up a sum of money. Q
R R
21. Mr Lee agreed that $37,160, which was in the form of
S banknotes and which had stapling holes on them, among the cash found S
in the safe was undeniably proceeds from prostitution, but he claimed that
T T
the rest of the cash was the personal savings of D1. Mr Lee made it clear
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A A
B B
that on this issue he would rely only on his submission and would not call
C
D1 to give evidence.
C
D D
22. Mr Lee submitted that the most important factor that should
E
be taken into consideration in the present case was the scale of operation
E
of the establishment in question. Regarding the number of the prostitutes,
F F
Mr Lee pointed out that only a total of seven prostitutes were connected
G with locations 1 to 4, and that location 5 was not included in the charges G
which D1 faced (in that location three other prostitutes were found). Mr
H H
Lee submitted that money found in locations 1 to 3 was only about
I $3,000. According to Mr Lee (the prosecution did not object), all the I
prostitutes were around the age of 30, and even the youngest one was a
J J
20 years old adult. There is no evidence that the prostitutes had been
K threatened, forced to entertain any customers or subjected to severe K
exploitation. On the contrary, the evidence shows that the prostitutes
L L
could freely move about on the street to look for customers.
M M
23. Mr Lee submitted that the four defendants were all
N N
employees: two were responsible for indoor work and two for outdoor
O work. No advertising materials were found in the establishment. The O
mode of operation was rather primitive, not sophisticated, and there is no
P P
sign which indicates that the operator had done anything to make it
Q difficult to investigate and crack this case. Q
R R
24. Mr Lee relied on three cases: Secretary for Justice v Lee Cho
S Keung & Ors1; The Queen v Lau Kin Ming & Another2; and HKSAR v S
1
T Secretary for Justice v Lee Cho Keung & Ors CAAR 2/2003 T
2
The Queen v Lau Kin Ming & Another [1992] 1 HKCLR 210
U U
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A A
B
Chan Chung Por3. He asked the court to give D1 due credit for her pleas B
C
of guilty, and to sentence her in accordance with the principle of totality.
C
D D
D2
E E
25. D2 was born in Thailand in January 1976. He is now
F F
40 years old, married, without any children. In 2010 in Thailand he
G married a Thai woman who had a Hong Kong identity card. He said he G
was a friend of D1. Starting from 2012, D2 performed in a Thai
H H
restaurant as a singer and earned a monthly salary of around $10,000. He
I remitted about $2,500 to Thailand every month to support his mother. I
Every Tuesday, Friday and Saturday, after he finished his singing job in
J J
the Thai restaurant, he went to work at location 4. His duties included
K watching the CCTV and monitoring what was going on in locations 1 to K
3 and 5, in order to ensure the personal safety of the prostitutes.
L L
M 26. Mr Suen, counsel for D2, adopted the relevant parts of the M
submissions made by counsel for D1, and he heavily relied on Secretary
N N
for Justice v Lee Cho Keung & Ors4. Mr Suen pointed out that the vice
O establishment in the present case did not operate in an open and overt O
way; instead, its operation was carried out covertly, and D3 and D4 were
P P
needed to act as lookouts. Mr Suen emphasized that in the present case
Q there was no exploitation and no one was forced to prostitute herself. All Q
the prostitutes were adults and they charged only $250 for half an hour’s
R R
services. Mr Suen contended that judging from the above circumstances,
S the operation of the vice establishment was not sophisticated, that it only S
3
T HKSAR v Chan Chung Por HCMA 1053/2005 T
4
Secretary for Justice v Lee Cho Keung & Ors CAAR 2/2003
U U
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A A
B
belonged to the rather primitive category of “soliciting by streetwalkers”, B
C
and that it was not run as an enterprise as the one in Secretary for Justice
C
5 6
v Lee Cho Keung & Ors (see HKSAR v Lam Sze Kei & Another ). Mr
D D
Suen also relied on HKSAR v Au Kam Yui 7, in particular the comments in
E
that case that there were no tariffs for the offence of keeping a vice
E
establishment, that the sentence of each particular case should be passed
F F
according to the facts of that case, and that in five relevant cases decided
G between 2001 and 2006, 12 months was used as the starting point. Mr G
Suen stressed that D2 had no previous convictions and he urged me to
H H
deal with him leniently.
I I
D3 and D4
J J
K 27. D3 was born on the Mainland in May 1956. He has K
40 previous convictions, involving 57 charges, but they were different
L L
from the charges he faces in this case.
M M
28. D4 was born in Hong Kong in March 1962. He has
N N
12 previous convictions, involving 15 charges, but none of them is the
O same as or related to the charges he faces in this case. O
P P
29. Mr Fung, counsel for D3 and D4, submitted that the
Q strongest mitigating factor of D3 and D4 was that they frankly pleaded Q
guilty. These two defendants adopted the relevant and applicable parts of
R R
the mitigation submissions made by counsel for D1 and counsel for D2.
S S
5
Secretary for Justice v Lee Cho Keung & Ors CAAR 2/2003
6
T HKSAR v Lam Sze Kei & Another [2005] 3 HKLRD 273 T
7
HKSAR v Au Kam Yui [2007] 3 HKC 281
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A A
B B
C
30. Mr Fung stressed that D3 and D4 were only responsible for
C
doing legwork and the roles they played were like that of a sapper. They
D D
did not perform any actual management function. Neither of them was
E
able to communicate with the Thai girls and had to rely on signals and
E
gestures. Mr Fung submitted that the work which D3 and D4 were
F F
responsible for had little to do with the mode and scale of occupation of
G the vice establishment. Based on the absence of evidence that the Thai G
prostitutes had been subjected to exploitation, Mr Fung asked the court to
H H
consider that there was no person victimized in this case, and to treat
I D3 and D4 as leniently as possible. I
J J
Reasons for sentence
K K
31. There is no sentencing guideline for the offence of keeping a
L L
vice establishment. The scale of operation of the vice establishment in
M question is the key consideration in sentencing in the present case. In this M
respect, I consider that the establishment comprised an operation centre
N N
(location 4) and four units (locations 1, 2, 3 and 5), and could be used by
O about 10 prostitutes. The reasons are set out below. O
P P
32. First of all, activities in the four units were monitored by
Q people in the operation centre through CCTV. The photographs produced Q
by the prosecution show that one feature of the mode of operation of the
R R
establishment was that it was expressly provided that: I. Working hours
S were 6 pm to 5 am. II. Under no circumstances was going outside S
allowed. III. No customer was allowed to be brought to the premises
T T
outside working hours. IV Time allowed for each job was 30 minutes; no
U U
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A A
B B
working beyond this time limit was allowed. V. The boss had to be
C
notified before going out. VI. Under no circumstances was going outside
C
after work allowed. “Anyone who breaks any of these rules shall pay a
D D
forfeit of $1,000”. I consider that the CCTV monitoring, apart from
E
ensuring that the prostitutes would be free from disturbance in the
E
establishment, could also prevent the prostitutes from leaving the units
F F
(including location 5) or bringing customers to the establishment outside
G working hours (also included location 5) in violation of the rules. More G
importantly, the CCTV monitoring could show that the time spent on
H H
prostitution each time did not exceed 30 minutes and could show how
I many customers each prostitute brought to the establishment, so as to I
ensure the accuracy of the records made by the prostitutes. In this case,
J J
all the prostitutes arrested in the four locations came from Thailand to
K Hong Kong for engaging in prostitution. 13 electronic air tickets were K
seized in the operation centre; the names on some of them were the same
L L
as the names of the prostitutes. Moreover, bills, receipts and other
M commercial documents about water charge, electricity charge, gas charge, M
furniture expenses, fitting up expenses and wireless monitoring system
N N
expenses in connection with the four units were seized in the operation
O centre. Lastly, the tenancy agreement in respect of location 5 was also O
seized in the operation centre.
P P
Q 33. In my view, under the above-mentioned mode of operation, Q
the personal freedom of the prostitutes was subjected to considerable
R R
restriction. Furthermore, in the operation centre cash of over
S $158,000 was seized. The tenancy agreements produced by the S
prosecution show that the total amount of rent for the five locations was
T T
$58,500 per month. The joint operation of the five locations began on
U U
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A A
B B
10 April 2015. Among these locations, the first one whose tenancy
C
agreement had to be renewed was location 5, and it would have happened
C
on 19 November 2015. This shows that the intention of the operator was
D D
to go on operating the establishment from May 2015 to November
E
2015 in the same scale, involving an expenditure of nearly $60,000 per
E
month as rent. (I noticed that each prostitute charged $250 each time for
F F
the sexual services she provided.) This item of regular and fundamental
G expenditure can by no means be said to be insignificant. G
H H
34. Since about $60,000 per month in total was required for
I paying the rent for the locations involved in this case, judging from all the I
circumstances, I find beyond reasonable doubt that of the $158,160, apart
J J
from the $31,760[sic], which were proceeds from prostitution and on
K which there are holes caused by staplers, all the rest of this amount of K
cash was money for the operating cost of the establishment. In this
L L
connection, the prosecution, at the request of the court, provided
M information about the things, other than the cash, contained in the safe M
found in this case. The court was informed that those things included a
N N
significant amount of money in foreign currencies and other valuables,
O for example, watches of prestigious brands. The prosecution did not O
dispute that those things belonged to D1, and Mr Lee said in his
P P
submission that a finance supplier or boss, who remained behind the
Q scenes, was involved in the operation of the establishment. Q
R R
35. I agree with the defence’s submission that the vice
S establishment in the present case was not run as an enterprise as the one S
in Secretary for Justice v Lee Cho Keung & Ors8 or the one in HKSAR v
T T
8
Secretary for Justice v Lee Cho Keung & Ors CAAR 2/2003
U U
V V
- 18 -
A A
B
Lam Sze Kei & Another 9 (note: Prostitutes of the age of only 16 were B
C
found in Secretary for Justice v Lee Cho Keung & Ors 10, and the Court of
C
Appeal used 3½ years’ imprisonment as the starting point.). That said,
D D
the scale of operation of the vice establishment in the present case was
E
quite large. There is also evidence which shows that the operator
E
intended to run the establishment in such mode of operation for a
F F
considerable period of time. Having considered the authorities submitted
G by the defence, I accept the following points raised by the defence: no G
underage prostitute was involved in this case; nor was any girl forced to
H H
come to Hong Kong to be prostitute; nor was any prostitute severely
I exploited. Besides, the way in which the prostitutes received and I
entertained customers were quite simple (but I consider that the
J J
establishment was being operated quite efficiently: see the transaction
K records produced by the prosecution). K
L L
36. I find that D1’s extent of participation was not much
M different from that of D2. It is noteworthy that in the safe, apart from the M
cash, there were D1’s personal effects and belongings as well. This
N N
shows that D1, not D2, was the person who was in charge of the
O operating fund of the establishment. However, at the time of the offences, O
D2 was present in the operation centre, and he was the tenant of the
P P
operation centre. D2’s fingerprints were lifted in the drawer in location 3
Q and on the transaction records in locution 4. Finally, D2 also took part in Q
the work of monitoring the prostitutes.
R R
S S
T 9
HKSAR v Lam Sze Kei & Another [2005] 3 HKLRD 273 T
10
Secretary for Justice v Lee Cho Keung & Ors CAAR 2/2003
U U
V V
- 19 -
A A
B B
Conclusion
C C
37. D1 has two previous convictions of breach of condition of
D D
stay, while D2 has a clear record. Taking into account the principle of
E
totality, the scale of operation of the vice establishment and the roles of
E
the two defendants (as employees), I find that for D1, the overall starting
F F
point should be imprisonment for two years and nine months, and that for
G D2, the overall starting point should be two years’ imprisonment. Both G
defendants are entitled to a one third discount. Therefore, the total
H
sentence of D1 shall be 22 months’ imprisonment and the total sentence H
I of D2 shall be 16 months’ imprisonment. I
J J
38. As for the individual charges, the starting point of charges
K 1 to 4 which D1 faces is 27 months’ imprisonment for each charge. After K
receiving the one third discount on account of her guilty pleas, D1 is
L L
sentenced to 18 months’ imprisonment for each of these four charges.
M The sentences are to run concurrently. For Charges 9 and 17 which D1 M
faces, the starting point is nine months’ imprisonment each. Having been
N N
reduced by the guilty plea discount, the sentence for each of these two
O charges is six months’ imprisonment. Both sentences are to be served O
concurrently. The starting point of Charge 13 which D1 faces is six
P P
months’ imprisonment. Having been reduced by the guilty plea discount,
Q the sentence becomes four months’ imprisonment. Taking into account Q
the principle of totality, I order that two months of the sentences for
R R
Charges 9 and 17 shall run consecutively to the 18 months’ sentence for
S Charges 1 to 4, and that two months of the sentence for Charge 13 shall S
be served consecutively to the sentences for other charges. The total
T T
sentence of D1 is 22 months’ imprisonment.
U U
V V
- 20 -
A A
B B
C
39. D2 has no previous convictions. The starting point of
C
Charges 1 to 4 which he faces is 21 months’ imprisonment each. The
D D
sentence for each charge, after reduced by the one third discount given by
E
reason of his guilty pleas, is 14 months’ imprisonment. The sentences are
E
to run concurrently. The starting point of Charge 10 and 12 which D2
F
faces is nine months’ imprisonment each. The sentence for each of these F
G two charges, having been reduced by the guilty plea discount, is six G
months’ imprisonment. The sentences are to run concurrently. Taking
H H
into account the totality principle, I order that two months of the
I sentences for Charges 10 and 12 are to run consecutively to the 14 I
months’ imprisonment for Charges 1 to 4. The total sentence of D2 is 16
J J
months’ imprisonment.
K K
40. Charge 14 which D3 faces takes a starting point of six
L L
months’ imprisonment, and the sentence is reduced to four months’
M imprisonment because of his plea of guilty. The starting point of Charge M
15 which he faces is nine months’ imprisonment, and the sentence
N N
becomes six months’ imprisonment after reduced by the guilty plea
O discount. Taking into account the totality principle, I order that one O
month of the sentence for Charge 14 is to run consecutively to the six
P P
months’ imprisonment for Charge 15, making a total sentence of seven
Q months’ imprisonment. Q
R R
41. The starting point of Charge 16 which D4 faces should be
S six months’ imprisonment. After it is reduced by one third because of his S
guilty plea, he is sentenced to four months’ imprisonment.
T T
U U
V V
- 21 -
A A
B B
C C
D D
(Joseph To)
E
Deputy District Judge
E
F F
G G
Translated by the Judgment Translation Unit of the Judiciary and vetted
H H
by Mr. Patrick W.S. Cheung, Barrister-at-law.
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B
[English Translation – 英譯本] B
C DCCC 730/2015 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL JURDISDICTION
F F
CRIMINAL CASE NO 730 OF 2015
G __________________ G
BETWEEN
H H
HKSAR
I AND I
HEMWICHIT THANATCHA (D1)
J J
PONGPORNLAPUS PUKKAPON（ 鄧志偉） ( D 2 )
K MA Chuen（馬泉）(D3) K
LEUNG Yiu-lun（梁耀麟）(D4)
L L
__________________
M M
N
Coram: Deputy District Judge Joseph To in Court N
Date: 2:37 pm on 4 March 2016
O O
Present: Mr Jeff Ho, Counsel on fiat, for the HKSAR
P
Mr Lee Tak Tung, Paul, instructed by Messrs A M Mui & P
Kwan, assigned by the Legal Aid Department, for D1
Q Q
Mr Suen Kam Hee, instructed by Messrs Charles Chu &
R
Kenneth Sit, assigned by the Legal Aid Department, for D2 R
Mr Fung Chun Wah, Keith, instructed by Messrs Raymond
S S
Lam & Associates, assigned by the Legal Aid Department,
T
for D3 and D4 T
U U
V V
- 2 -
A A
B
Offences: (1)-(6) Managing a vice establishment （ 管 理 賣 淫 場 B
C 所 ）—— D1 &D2 C
(7) Living on earnings of prostitution of others（依 靠 他 人
D D
賣 淫 的 收 入 為 生 ） —— D1 & D2
E E
(8) Controlling other persons for the purpose of prostitution
F （控 制 其 他 人 而 目 的 在 於 使 該 人 賣 淫 ）——D1 & D2 F
(9) Tenant permitting premises to be kept as a vice
G G
establishment（租 客 准 許 處 所 經 營 賣 淫 場 所 ）——D1
H (10)-(12) Tenant permitting premises to be kept as a vice H
establishment（租 客 准 許 處 所 經 營 賣 淫 場 所 ）——D2
I I
(13) Breach of condition of stay（違 反 逗 留 條 件 ）——
J J
D1
K (14) Living on earnings of prostitution of others（依 靠 他 K
人 賣 淫 的 收 入 為 生 ） ——D3
L L
(15) Tenant permitting premises to be kept as a vice
M establishment（租 客 准 許 處 所 經 營 賣 淫 場 所 ）——D3 M
N (16) Living on earnings of prostitution of others（依 靠 他 N
人 賣 淫 的 收 入 為 生 ） ——D4
O O
(17) Tenant permitting premises to be kept as a vice
P establishment（租 客 准 許 處 所 經 營 賣 淫 場 所 ）——D1 P
Q Q
R R
REASONS FOR SENTENCE
S S
T T
U U
V V
- 3 -
A A
B B
Offences
C C
1. The four defendants appeared in this court on 23 February
D D
2016.
E E
2. D1 and D2 pleaded guilty to four charges of managing a vice
F F
establishment, contrary to section 139(1)(b) of the Crimes Ordinance,
G Cap 200 Laws of Hong Kong (“Charges 1 to 4”). D1 further pleaded G
guilty to two charges of tenant permitting premises to be kept as a vice
H H
establishment, contrary to section 144(1)(a) of the Crimes Ordinance,
I Cap 200 Laws of Hong Kong (“Charges 9 and 17”). Finally, she pleaded I
guilty to one more charge, breach of condition of stay, contrary to section
J J
41 of the Immigration Ordinance, Cap 115 Laws of Hong Kong (“Charge
K 13”). As for D2, in addition to Charges 1 to 4, he pleaded guilty to two K
charges of tenant permitting premises to be kept as a vice establishment,
L L
contrary to section 144(1)(a) of the Crimes Ordinance, Cap 200 Laws of
M Hong Kong (“Charges 10 and 12”). M
N N
3. D3 pleaded guilty to one charge of living on earnings of
O prostitution of others, contrary to section 137(1) of the Crimes Ordinance, O
Cap 200 Laws of Hong Kong (“Charge 14”), and one charge of tenant
P P
permitting premises to be kept as a vice establishment, contrary to section
Q 144(1)(a) of the Crimes Ordinance, Cap 200 Laws of Hong Kong Q
(“Charge 15”). Lastly, D4 pleaded guilty to one charge of living on
R R
earnings of prostitution of others, contrary to section 137(1) of the Crimes
S Ordinance, Cap 200 Laws of Hong Kong (“Charge 16”). S
T T
U U
V V
- 4 -
A A
B B
4. The prosecution offered no evidence in relation to Charge 11
C
and the court found D2 not guilty of that charge, which was dismissed
C
accordingly. The prosecution applied to leave Charges 5 to 8 on file.
D D
The legal representatives of D1 and D2 raised no objection and the
E
application was granted.
E
F F
Facts
G G
5. From 7 to 8 May 2015, the police conducted an undercover
H H
operation in Yaumatei against vice activities. Five premises or locations
I were involved: I
J J
1. Flat 8, 1st floor, Agatha House, 21 Ning Po Street, Yaumetei
K “location 1” (Charges 1 and 9); K
L L
2. Flat 6, 3rd floor of the same building “location 2” (Charges 2
M and 10); M
N N
3. Flat 8, 3rd floor of the same building “location 3” (Charges 3
O and 17); O
P P
4. Flat 3, 6th floor of the same building “location 4” (Charges 4
Q and 12); and Q
R R
5. Rooms B, C and D, 2nd floor, 63 Pilkem Street “location 5”
S (Charge 15); S
T T
U U
V V
- 5 -
A A
B B
In the evening of 8 May 2015, several policemen, disguised as
C
pedestrians, went to Ning Po Street and the neighbouring area to carry out
C
the undercover operation. In the course of the operation, they were
D D
subjected to solicitation from several Thai prostitutes, who took them to
E
locations 1, 2 and 3 respectively, intending to provide sexual services to
E
them and to have sexual transactions with them.
F F
G 6. At 8:15 pm on 8 May 2015, two policemen, who were at the G
junction of Shanghai Street and Ning Po Street, saw that D3 and D4
H H
arranged for six Thai girls to stand on Ning Po Street near the junction of
I Ning Po Street and Shanghai Street. At that time, D3 and D4 kept I
looking around, while the Thai girls solicited on the street by waving and
J J
smiling at the men who passed by. One to two minutes’ later, uniformed
K policemen, who were on patrol, appeared on Ning Po Street, near the K
junction of Ning Po Street and Shanghai Street. D3 and D4 instructed the
L L
girls to go to Temple Street, and the girls walked away hurriedly towards
M Temple Street. After the policemen had left, D3 instructed the girls to M
return to where they had been and they resumed soliciting. (Charges 14
N N
and 16)
O O
7. At 8:30 pm of the same evening, an undercover detective
P P
saw three Thai girls on Ning Po Street near Shanghai Street. One of the
Q girls waved at the detective and said in English, “Two hundred fifty”. Q
After that, the girl took the detective to location 2 and intended to provide
R R
sexual services to him, but the detective stopped her and put her under
S control. At this moment, a group of policemen came to the scene for S
investigation. They found another Thai girl in another room in the flat.
T T
In the course of their investigation, the girl admitted to the policemen that
U U
V V
- 6 -
A A
B B
she came to Hong Kong for prostitution. In the end, the two Thai girls
C
were arrested for breach of condition of stay. (Charge 2)
C
D D
8. At about the same time, another undercover detective saw a
E
Thai girl on Ning Po Street, who said in English to him, “Two hundred
E
fifty, make love”. Then she took the detective to room A of location 3,
F F
intending to provide sexual services to him, but was stopped and put
G under control by him. In addition, another undercover detective saw G
another Thai girl in the vicinity of Ning Po Street, who similarly said in
H
English to the detective, “Two hundred fifty”, and took him to room C of H
I location 3, intending to provide sexual services to him, but the detective I
revealed his identity and put her under control. Around 8:45 pm, a group
J J
of policemen arrived at location 3. They found in room B a man, who
K was surnamed Lam, and the 3rd Thai girl in the flat. The man admitted K
that he was there whoring, and said that he was taken by the girl to room
L L
B for sexual intercourse. The policemen arrested the three Thai girls,
M who were in location 3, for breach of condition of stay and soliciting for M
an immoral purpose. (Charge 3)
N N
O 9. Since the undercover operation on Ning Po Street bore fruit, O
around 8:40 pm a group of policemen went to location 4 to investigate.
P P
They found D1, D2 and a Thai girl in the flat. D1 admitted that she and
Q D2 rented locations 1 to 3 for the Thai girls to engage in prostitution there. Q
Thereupon, the policemen arrested her for keeping a vice establishment.
R R
Under caution she said, “Sir, it’s me and Ah Dee who are responsible for
S running this vice establishment. Please don’t arrest the Thai girls”. The S
policemen found that two tablet computers and two televisions placed in
T T
U U
V V
- 7 -
A A
B B
the sitting room of location 4 could be used to monitor, through CCTV
C
cameras, what was going on in locations 1, 2, 3 and 5. (Charges 1 to 4)
C
D D
10. The policemen seized a safe in a bedroom in location 4. The
E
safe contained D1’s personal belongings, some identification documents,
E
some valuable items and cash $158,160, of which $37,160 (in the form of
F F
banknotes) had small holes on them caused by stapling. In the sitting
G room of location 4 the following items were seized: I. A tenancy G
agreement about the renting of location 5 by D3. (Charge 15) II. 13
H H
electronic air tickets (the names on some of them were the same as the
I names of the Thai prostitutes involved in this case). III. Bills, receipts I
and other commercial documents about the water charge, electricity
J J
charge, gas charge, furniture expenses, fitting up expenses and wireless
K monitoring system expenses related to locations 1 to 5. IV. Tenancy K
agreements about the renting of locations 1 and 3 by D1. V. Tenancy
L L
agreements about the renting of locations 2 and 4 by D2. VI. Business
M records or pieces of paper torn from business record notebooks seized in M
location 1, 2 and 5 (on some of them D2’s fingerprints were found). VII.
N N
Seven tablet computers, televisions and monitors etc. Some of them could
O be used to monitor, through CCTV, locations 1, 2, 3 and 5. (Charges 1 to O
4)
P P
Q 11. At about 9 pm, some policemen arrived at location 1 for Q
investigation. A Thai girl opened the door. Later, the police learned that
R R
the girl came to Hong Kong as a visitor on 28 April 2015 and could stay
S until 28 May, but she was not allowed to work during her stay. The Thai S
girl admitted to the police that her purpose of coming to Hong Kong was
T T
U U
V V
- 8 -
A A
B B
to engage in prostitution, so she was arrested for breach of condition of
C
stay. (Charge 1)
C
D D
12. In the small hours of 9 May 2015, a group of policemen
E
went to location 5 to investigate. They forced opened the doors of rooms
E
A to E in the flat. A Thai girl was found in each of rooms B, C and D.
F F
They all admitted that they came to Hong Kong as a visitor to engage in
G prostitution. (Charge 15) G
H H
13. In this operation, the policemen seized in locations 1, 2,
I 3 and 5 many condoms, lubricating oil, staplers and record books. When I
conducting investigation in location 1, the policemen found in a drawer
J J
five piles of banknotes. The banknotes were stapled together. Each pile
K consisted of HK$250 and the total amount was $1,250. In location 2, the K
policemen similarly found in a drawer a pile of banknotes which were
L L
stapled together, the total sum of which was $250. In location 3, the
M policemen also found seven piles of stapled-together-banknotes, of which M
six piles consisted of $250 each; one pile was $350, and there was one
N N
$50 banknote, making a total of $1,850; and in the drawer in which the
O banknotes were kept, D2’s fingerprints were found. O
P P
14. Police investigation disclosed that D1 is not a permanent
Q resident of Hong Kong. She came here on 1 April 2013 and was Q
permitted to stay until 27 April, but she did not leave before her stay
R R
expired, and so she has been in breach of condition of stay since 28 April
S 2013. (Charge 13) S
T T
U U
V V
- 9 -
A A
B B
15. As the undercover operation was successful, the policemen
C
intercepted D3 and questioned him. D3 admitted that he was positioned
C
on Ning Po Street near the junction of Ning Po Street and Shanghai Street,
D D
acting as a lookout. When policemen were approaching, he would signal
E
the Thai prostitutes to go away; and when the policemen left, he would
E
signal them to come back to continue soliciting. The policemen arrested
F F
D3 for assisting in the keeping of a vice establishment. He said under
G caution, “I was just doing my work.” Subsequently, when he was being G
questioned under caution, he said that he worked as a lookout only
H H
because he had to provide for his wife and daughter. He said that D1 was
I called “Ah May”, that she was the boss and that D2 was her “husband”. I
According to him, his work was that every day at 6 pm he was to wake up
J J
the Thai girls in locations 1 to 3 and took them to Ning Po Street and the
K neighboring area to look for customers. When patrolling policemen came, K
he would tell the girls to go away. When the policemen left, he would
L L
tell them to resume working. He admitted that he had already worked for
M over one year. He knocked off at 5 am everyday. D3 added that he M
would buy food for the Thai girls and help them to carry their luggage.
N N
He knew that sexual services were provided in locations 1 to 3. About 10
O Thai girls engaged in prostitution. Each time each customer was charged O
$250 as the price for the sexual services. Everyday there were 30 to 80
P P
customers. D3’s daily wage was $800. He knew that D4 was also
Q employed by D1. Location 5 was rented by him on D1’s instruction. Q
(Charge 14)
R R
S 16. Another policeman intercepted D4 and questioned him. S
Likewise, D4 admitted that he was a lookout. That means when
T T
patrolling policemen appeared, he would warn the Thai prostitutes that
U U
V V
- 10 -
A A
B B
they should leave. When the policemen left, they would come back to the
C
same place to solicit. D4 said that his daily wage was $500. He was
C
similarly arrested for assisting in the keeping of a vice establishment.
D
Under caution he said, “I was unemployed. I just wanted to earn my D
E
living.” Subsequently, when he was being questioned under caution, he
E
said he could not find any work, so he kept watch for the Thai girls on
F F
Ning Po Street near Shanghai Street. That means when policemen were
G approaching, he would signal the Thai girls to go away, to stop soliciting G
for the time being; and at the same time he would notify D1. His working
H H
hours were 6 pm to 2 am. He knew that the Thai girls were prostitutes,
I who took customers from the street to Agatha House for sexual I
transactions. He knew that the Thai girls would record the transactions
J J
on pieces of paper, and everyday D1 would collect the records and cash
K generated from the sexual transactions. D4’s daily wage was $500. K
(Charge 16)
L L
M Mitigation submissions M
N N
D1
O O
17. D1 was born in Thailand in January 1971. She has two
P P
criminal convictions in Hong Kong. Both are the offence of breach of
Q condition of stay, for which she was sentenced in October 1996 and Q
August 1997 to two months’ and three months’ imprisonment
R R
respectively.
S S
18. By way of mitigation, Mr Lee, counsel for D1, submitted
T T
that the defendant’s present husband lived in Hong Kong, who married
U U
V V
- 11 -
A A
B B
D1 in 2008, but that D1 did not complete all the procedures for applying
C
to be a permanent resident of Hong Kong, and that was why she
C
committed the offence referred to in Charge 13, namely breach of
D D
condition of stay. Mr Lee said D1 was 44 years old. She did not receive
E
any formal education and she went to Singapore at the age of 20 to make
E
a living by being a prostitute.
F F
G 19. After D1 came to Hong Kong in 2008, she married a Hong G
Kong resident who was born in Nepal and became a housewife. However,
H H
her husband was unemployed, so she resumed her old job and earned her
I living by being a prostitute from 2008 to 2013. In 2013, her husband I
even disappeared, but she had to take care of her elderly mother, who was
J J
in Thailand, and her young nephew and young niece; she therefore
K operated the vice establishment involved in this case. K
L L
20. Mr Lee said in mitigation that D1 was not the head of the
M vice establishment. The capital for setting up the establishment all came M
from the head, who also provided the rent for renting the premises
N N
concerned (Charges 9 and 17) and paid the expenses for buying things
O relating to prostitution. D1 also worked as a Thai interpreter to assist O
Thai girls to engage in prostitution in Hong Kong. She had a monthly
P P
wage of $12,000 and was provided with a place to live in. She lived a
Q frugal life, so she saved up a sum of money. Q
R R
21. Mr Lee agreed that $37,160, which was in the form of
S banknotes and which had stapling holes on them, among the cash found S
in the safe was undeniably proceeds from prostitution, but he claimed that
T T
the rest of the cash was the personal savings of D1. Mr Lee made it clear
U U
V V
- 12 -
A A
B B
that on this issue he would rely only on his submission and would not call
C
D1 to give evidence.
C
D D
22. Mr Lee submitted that the most important factor that should
E
be taken into consideration in the present case was the scale of operation
E
of the establishment in question. Regarding the number of the prostitutes,
F F
Mr Lee pointed out that only a total of seven prostitutes were connected
G with locations 1 to 4, and that location 5 was not included in the charges G
which D1 faced (in that location three other prostitutes were found). Mr
H H
Lee submitted that money found in locations 1 to 3 was only about
I $3,000. According to Mr Lee (the prosecution did not object), all the I
prostitutes were around the age of 30, and even the youngest one was a
J J
20 years old adult. There is no evidence that the prostitutes had been
K threatened, forced to entertain any customers or subjected to severe K
exploitation. On the contrary, the evidence shows that the prostitutes
L L
could freely move about on the street to look for customers.
M M
23. Mr Lee submitted that the four defendants were all
N N
employees: two were responsible for indoor work and two for outdoor
O work. No advertising materials were found in the establishment. The O
mode of operation was rather primitive, not sophisticated, and there is no
P P
sign which indicates that the operator had done anything to make it
Q difficult to investigate and crack this case. Q
R R
24. Mr Lee relied on three cases: Secretary for Justice v Lee Cho
S Keung & Ors1; The Queen v Lau Kin Ming & Another2; and HKSAR v S
1
T Secretary for Justice v Lee Cho Keung & Ors CAAR 2/2003 T
2
The Queen v Lau Kin Ming & Another [1992] 1 HKCLR 210
U U
V V
- 13 -
A A
B
Chan Chung Por3. He asked the court to give D1 due credit for her pleas B
C
of guilty, and to sentence her in accordance with the principle of totality.
C
D D
D2
E E
25. D2 was born in Thailand in January 1976. He is now
F F
40 years old, married, without any children. In 2010 in Thailand he
G married a Thai woman who had a Hong Kong identity card. He said he G
was a friend of D1. Starting from 2012, D2 performed in a Thai
H H
restaurant as a singer and earned a monthly salary of around $10,000. He
I remitted about $2,500 to Thailand every month to support his mother. I
Every Tuesday, Friday and Saturday, after he finished his singing job in
J J
the Thai restaurant, he went to work at location 4. His duties included
K watching the CCTV and monitoring what was going on in locations 1 to K
3 and 5, in order to ensure the personal safety of the prostitutes.
L L
M 26. Mr Suen, counsel for D2, adopted the relevant parts of the M
submissions made by counsel for D1, and he heavily relied on Secretary
N N
for Justice v Lee Cho Keung & Ors4. Mr Suen pointed out that the vice
O establishment in the present case did not operate in an open and overt O
way; instead, its operation was carried out covertly, and D3 and D4 were
P P
needed to act as lookouts. Mr Suen emphasized that in the present case
Q there was no exploitation and no one was forced to prostitute herself. All Q
the prostitutes were adults and they charged only $250 for half an hour’s
R R
services. Mr Suen contended that judging from the above circumstances,
S the operation of the vice establishment was not sophisticated, that it only S
3
T HKSAR v Chan Chung Por HCMA 1053/2005 T
4
Secretary for Justice v Lee Cho Keung & Ors CAAR 2/2003
U U
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A A
B
belonged to the rather primitive category of “soliciting by streetwalkers”, B
C
and that it was not run as an enterprise as the one in Secretary for Justice
C
5 6
v Lee Cho Keung & Ors (see HKSAR v Lam Sze Kei & Another ). Mr
D D
Suen also relied on HKSAR v Au Kam Yui 7, in particular the comments in
E
that case that there were no tariffs for the offence of keeping a vice
E
establishment, that the sentence of each particular case should be passed
F F
according to the facts of that case, and that in five relevant cases decided
G between 2001 and 2006, 12 months was used as the starting point. Mr G
Suen stressed that D2 had no previous convictions and he urged me to
H H
deal with him leniently.
I I
D3 and D4
J J
K 27. D3 was born on the Mainland in May 1956. He has K
40 previous convictions, involving 57 charges, but they were different
L L
from the charges he faces in this case.
M M
28. D4 was born in Hong Kong in March 1962. He has
N N
12 previous convictions, involving 15 charges, but none of them is the
O same as or related to the charges he faces in this case. O
P P
29. Mr Fung, counsel for D3 and D4, submitted that the
Q strongest mitigating factor of D3 and D4 was that they frankly pleaded Q
guilty. These two defendants adopted the relevant and applicable parts of
R R
the mitigation submissions made by counsel for D1 and counsel for D2.
S S
5
Secretary for Justice v Lee Cho Keung & Ors CAAR 2/2003
6
T HKSAR v Lam Sze Kei & Another [2005] 3 HKLRD 273 T
7
HKSAR v Au Kam Yui [2007] 3 HKC 281
U U
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A A
B B
C
30. Mr Fung stressed that D3 and D4 were only responsible for
C
doing legwork and the roles they played were like that of a sapper. They
D D
did not perform any actual management function. Neither of them was
E
able to communicate with the Thai girls and had to rely on signals and
E
gestures. Mr Fung submitted that the work which D3 and D4 were
F F
responsible for had little to do with the mode and scale of occupation of
G the vice establishment. Based on the absence of evidence that the Thai G
prostitutes had been subjected to exploitation, Mr Fung asked the court to
H H
consider that there was no person victimized in this case, and to treat
I D3 and D4 as leniently as possible. I
J J
Reasons for sentence
K K
31. There is no sentencing guideline for the offence of keeping a
L L
vice establishment. The scale of operation of the vice establishment in
M question is the key consideration in sentencing in the present case. In this M
respect, I consider that the establishment comprised an operation centre
N N
(location 4) and four units (locations 1, 2, 3 and 5), and could be used by
O about 10 prostitutes. The reasons are set out below. O
P P
32. First of all, activities in the four units were monitored by
Q people in the operation centre through CCTV. The photographs produced Q
by the prosecution show that one feature of the mode of operation of the
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establishment was that it was expressly provided that: I. Working hours
S were 6 pm to 5 am. II. Under no circumstances was going outside S
allowed. III. No customer was allowed to be brought to the premises
T T
outside working hours. IV Time allowed for each job was 30 minutes; no
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V V
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A A
B B
working beyond this time limit was allowed. V. The boss had to be
C
notified before going out. VI. Under no circumstances was going outside
C
after work allowed. “Anyone who breaks any of these rules shall pay a
D D
forfeit of $1,000”. I consider that the CCTV monitoring, apart from
E
ensuring that the prostitutes would be free from disturbance in the
E
establishment, could also prevent the prostitutes from leaving the units
F F
(including location 5) or bringing customers to the establishment outside
G working hours (also included location 5) in violation of the rules. More G
importantly, the CCTV monitoring could show that the time spent on
H H
prostitution each time did not exceed 30 minutes and could show how
I many customers each prostitute brought to the establishment, so as to I
ensure the accuracy of the records made by the prostitutes. In this case,
J J
all the prostitutes arrested in the four locations came from Thailand to
K Hong Kong for engaging in prostitution. 13 electronic air tickets were K
seized in the operation centre; the names on some of them were the same
L L
as the names of the prostitutes. Moreover, bills, receipts and other
M commercial documents about water charge, electricity charge, gas charge, M
furniture expenses, fitting up expenses and wireless monitoring system
N N
expenses in connection with the four units were seized in the operation
O centre. Lastly, the tenancy agreement in respect of location 5 was also O
seized in the operation centre.
P P
Q 33. In my view, under the above-mentioned mode of operation, Q
the personal freedom of the prostitutes was subjected to considerable
R R
restriction. Furthermore, in the operation centre cash of over
S $158,000 was seized. The tenancy agreements produced by the S
prosecution show that the total amount of rent for the five locations was
T T
$58,500 per month. The joint operation of the five locations began on
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A A
B B
10 April 2015. Among these locations, the first one whose tenancy
C
agreement had to be renewed was location 5, and it would have happened
C
on 19 November 2015. This shows that the intention of the operator was
D D
to go on operating the establishment from May 2015 to November
E
2015 in the same scale, involving an expenditure of nearly $60,000 per
E
month as rent. (I noticed that each prostitute charged $250 each time for
F F
the sexual services she provided.) This item of regular and fundamental
G expenditure can by no means be said to be insignificant. G
H H
34. Since about $60,000 per month in total was required for
I paying the rent for the locations involved in this case, judging from all the I
circumstances, I find beyond reasonable doubt that of the $158,160, apart
J J
from the $31,760[sic], which were proceeds from prostitution and on
K which there are holes caused by staplers, all the rest of this amount of K
cash was money for the operating cost of the establishment. In this
L L
connection, the prosecution, at the request of the court, provided
M information about the things, other than the cash, contained in the safe M
found in this case. The court was informed that those things included a
N N
significant amount of money in foreign currencies and other valuables,
O for example, watches of prestigious brands. The prosecution did not O
dispute that those things belonged to D1, and Mr Lee said in his
P P
submission that a finance supplier or boss, who remained behind the
Q scenes, was involved in the operation of the establishment. Q
R R
35. I agree with the defence’s submission that the vice
S establishment in the present case was not run as an enterprise as the one S
in Secretary for Justice v Lee Cho Keung & Ors8 or the one in HKSAR v
T T
8
Secretary for Justice v Lee Cho Keung & Ors CAAR 2/2003
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V V
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A A
B
Lam Sze Kei & Another 9 (note: Prostitutes of the age of only 16 were B
C
found in Secretary for Justice v Lee Cho Keung & Ors 10, and the Court of
C
Appeal used 3½ years’ imprisonment as the starting point.). That said,
D D
the scale of operation of the vice establishment in the present case was
E
quite large. There is also evidence which shows that the operator
E
intended to run the establishment in such mode of operation for a
F F
considerable period of time. Having considered the authorities submitted
G by the defence, I accept the following points raised by the defence: no G
underage prostitute was involved in this case; nor was any girl forced to
H H
come to Hong Kong to be prostitute; nor was any prostitute severely
I exploited. Besides, the way in which the prostitutes received and I
entertained customers were quite simple (but I consider that the
J J
establishment was being operated quite efficiently: see the transaction
K records produced by the prosecution). K
L L
36. I find that D1’s extent of participation was not much
M different from that of D2. It is noteworthy that in the safe, apart from the M
cash, there were D1’s personal effects and belongings as well. This
N N
shows that D1, not D2, was the person who was in charge of the
O operating fund of the establishment. However, at the time of the offences, O
D2 was present in the operation centre, and he was the tenant of the
P P
operation centre. D2’s fingerprints were lifted in the drawer in location 3
Q and on the transaction records in locution 4. Finally, D2 also took part in Q
the work of monitoring the prostitutes.
R R
S S
T 9
HKSAR v Lam Sze Kei & Another [2005] 3 HKLRD 273 T
10
Secretary for Justice v Lee Cho Keung & Ors CAAR 2/2003
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A A
B B
Conclusion
C C
37. D1 has two previous convictions of breach of condition of
D D
stay, while D2 has a clear record. Taking into account the principle of
E
totality, the scale of operation of the vice establishment and the roles of
E
the two defendants (as employees), I find that for D1, the overall starting
F F
point should be imprisonment for two years and nine months, and that for
G D2, the overall starting point should be two years’ imprisonment. Both G
defendants are entitled to a one third discount. Therefore, the total
H
sentence of D1 shall be 22 months’ imprisonment and the total sentence H
I of D2 shall be 16 months’ imprisonment. I
J J
38. As for the individual charges, the starting point of charges
K 1 to 4 which D1 faces is 27 months’ imprisonment for each charge. After K
receiving the one third discount on account of her guilty pleas, D1 is
L L
sentenced to 18 months’ imprisonment for each of these four charges.
M The sentences are to run concurrently. For Charges 9 and 17 which D1 M
faces, the starting point is nine months’ imprisonment each. Having been
N N
reduced by the guilty plea discount, the sentence for each of these two
O charges is six months’ imprisonment. Both sentences are to be served O
concurrently. The starting point of Charge 13 which D1 faces is six
P P
months’ imprisonment. Having been reduced by the guilty plea discount,
Q the sentence becomes four months’ imprisonment. Taking into account Q
the principle of totality, I order that two months of the sentences for
R R
Charges 9 and 17 shall run consecutively to the 18 months’ sentence for
S Charges 1 to 4, and that two months of the sentence for Charge 13 shall S
be served consecutively to the sentences for other charges. The total
T T
sentence of D1 is 22 months’ imprisonment.
U U
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A A
B B
C
39. D2 has no previous convictions. The starting point of
C
Charges 1 to 4 which he faces is 21 months’ imprisonment each. The
D D
sentence for each charge, after reduced by the one third discount given by
E
reason of his guilty pleas, is 14 months’ imprisonment. The sentences are
E
to run concurrently. The starting point of Charge 10 and 12 which D2
F
faces is nine months’ imprisonment each. The sentence for each of these F
G two charges, having been reduced by the guilty plea discount, is six G
months’ imprisonment. The sentences are to run concurrently. Taking
H H
into account the totality principle, I order that two months of the
I sentences for Charges 10 and 12 are to run consecutively to the 14 I
months’ imprisonment for Charges 1 to 4. The total sentence of D2 is 16
J J
months’ imprisonment.
K K
40. Charge 14 which D3 faces takes a starting point of six
L L
months’ imprisonment, and the sentence is reduced to four months’
M imprisonment because of his plea of guilty. The starting point of Charge M
15 which he faces is nine months’ imprisonment, and the sentence
N N
becomes six months’ imprisonment after reduced by the guilty plea
O discount. Taking into account the totality principle, I order that one O
month of the sentence for Charge 14 is to run consecutively to the six
P P
months’ imprisonment for Charge 15, making a total sentence of seven
Q months’ imprisonment. Q
R R
41. The starting point of Charge 16 which D4 faces should be
S six months’ imprisonment. After it is reduced by one third because of his S
guilty plea, he is sentenced to four months’ imprisonment.
T T
U U
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A A
B B
C C
D D
(Joseph To)
E
Deputy District Judge
E
F F
G G
Translated by the Judgment Translation Unit of the Judiciary and vetted
H H
by Mr. Patrick W.S. Cheung, Barrister-at-law.
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V