The facts of this case centre around six defendants who were deemed to be working in a “substantial, well-organised and no doubt lucrative operation which involved the prostitution of females brought in from the Mainland, some of which including H.Y. were in their early to mid teens. Each applicant would have been aware of the general nature and extent of the operation”. (Hon Wright J)
Because the first instance trial was not reported there are only a limited number of facts that can be gathered from the appeal judgment involving two of the defendants, namely Mr Man Wai (D.4. or A.1.) and Ms Mui Heung (D.6. or A.2.). The limited factual detail given is in relation to the role of Mr Man Wai.
H.Y., Anonymous 2 and Anonymous 3 were brought to Hong Kong illegally and given to Mr Man Wai. He told told Anonymous 2 that she had to work as a prostitute and when she protested she was “scolded” by him. H.Y. was only 16 at the time and was told she had to work as a prostitute to “repay the fee for sneaking into Hong Kong”. In relation to Anonymous 3, Mr Man Wai admitted that “she was inexperienced” and a “fat man then had sex with her in the premises in order to teach her”. Mr Man Wai claimed that the doors were open and the girls were not held against their will – but the judge noted that this was “unrealistic” as they were in Hong Kong illegally and there was nowhere for them to go.
The facts show, inter alia, elements of harbouring and receipt of individuals through deception, abuse of power/position of vulnerability and threats or use of force or other forms of coercion for the purpose of sexual exploitation/exploitation for the purpose of prostitution.
Chine1st Instance:
The District Court (Hong Kong), 8 May 2006, guilty.
Note: The first instance trial involved a total of six defendants, only two of which appealed (the defendants referred to in the present case report). The 1st, 2nd, 5th and 6th defendants were all convicted of ‘conspiracy to live on the earnings of prostitution’ in relation to one of the victims (H.Y.). The 1st defendant was also convicted of ‘trafficking in persons to Hong Kong’ and ‘controlling another person for the purpose of prostitution’. The 4th defendant was convicted of seven charges: three for living on the earnings of prostitution and four for controlling another person for the purpose of prostitution. The charges against the 3rd defendant are unknown.
2nd Instance:
The Court of Appeal of the High Court (Hong Kong), 3 April 2008, appeal against sentence dismissed.
Note: Only two of the defendants (“D.2.” and “D.4.”) brought an appeal against sentence.
1st Instance:
Mr Man Wai was convicted at the first instance trial on his own plea on seven charges: three for living on earnings of prostitution and four for controlling another person for the purpose of prostitution. He was sentenced to a total of 30 months imprisonment.
2nd Instance:
Mr Man Wai brought an appeal against his sentence in the Court of Appeal of the High Court (Hong Kong).
Issue: Whether the sentences imposed at first instance were manifestly excessive.
Reasoning as per Hon Tang V-P for the Court:
The presiding judge at first instance considered the maximum sentences for living on earnings of prostitution and controlling another person for the purpose of prostitution [10 and 14 years respectively]. Other sentencing factors taken into account were the “usual discount of one-third for his plea” and a reduction of approximately 40% for Pang Man Wai’s assistance to the police. In addition, “the order for the suspended sentence to be activated in full was appropriate” as Pang Man Wai began to commit the current offences within the first three months of the 2 year suspension period.
Aggravating factors: “At least in relation to H.Y. and Anonymous 2 there was an element of duress…there are also the important aggravating factors that the girls were in Hong Kong illegally, and in the case of H.Y., she was only 16.”
Decision: The sentences were not manifestly excessive. Application for leave to appeal dismissed.
1st Instance:
Ms Mui Heung pleaded guilty on the 17th day of the trial to one count of conspiracy to live on earnings of the prostitution of H.Y. She was sentenced to 31 months imprisonment.
2nd Instance:
Ms Mui Heung brought an appeal against her sentence in the Court of Appeal of the High Court (Hong Kong).
Issue: Whether the sentence imposed was manifestly excessive.
Reasoning:
The presiding judge at the first instance adopted a sentence range with a starting point of 2 years. Ms Mui Heung was given a discount of 20%, which was rounded up to 5 months, although she entered a late plea of guilty (on the 17th day of trial).
The court rejected the submission that Ms Mui Heung should not have received the same sentence range starting point as Mr Man Wai, the principal offender. It held there were other relevant factors to consider regarding Mr Man Wai’s sentence, such as the totality principle.
Similarly, the court rejected the submission that the discount of 20% for her plea was inadequate. Ms Mui Heung pleaded guilty only after evidence had been led which directly implicated her.
Other sentencing factors included her five previous convictions, all concerning vice establishments. Mitigating factors included that she had an “unfortunate background” and supported herself and her 15 year-old daughter on Comprehensive Social Security Assistance (CSSA) as well as on the proceeds of her own prostitution. However, it was held that her background was “no doubt” taken into consideration in sentencing.
Decision: The sentence was not manifestly excessive. The application for leave to appeal was dismissed.
The Court of Appeal of the High Court (Hong Kong)
2nd Instance: [2008] HKCA 112; 2008 WL 809808 (CA); CACC 250/2007
Of potential significance is that both the first and second applicants were self-represented in the District Court (Hong Kong). The first applicant was self-represented on appeal also.