HKSAR v. MINSHELL IVY

bjbj HCMA 835/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO. 835 OF 2008 (ON AP PEAL FROM TWCC NO. 2427/2008) ____________ BETWEEN HKSAR Respondent and MINSHELL IVY Appellant ____________ Before: Deputy High Court Judge E Toh in Court Date of Hearing: 11 February 2009 Date of Judgment: 11 February 2009 ______________ J U D G M E N T ______________ The Appellant has pleaded guilty to one count of managing an unlicensed massage establishment. The facts were that two police undercover officers had visited the M Squared Spa at a flat in Discovery Bay and were served by two masseuses. One had full body massage and another had a foot massage. After the massage, one of the masseuses had said to the undercover officer that the cost was $350 and marked money was given. Officers subsequently raided the premises. It was discovered that the two masseuses who had served the undercover officers were in Hong Kong on a two-way permit and was therefore not entitled to take up employment. In the parlor, a business registration was found but no massage license was located. Upon subsequent investigation, two more masseuses were located in another flat which is Room 710, Block D, Discovery Bay Plaza. Police subsequently interviewed the Appellant and arrested her for the offence. Under caution, the Appellant admitted that she had owned the parlor but had sold it to a lady named, Ms Chan, in November 2007, she was a Mainlander. She was employed by this Ms Chan at a monthly salary of $7,000. She was responsible for answering telephone calls from customers. She had diverted the telephone number of the Spa to her mobile phone in order to do that and therefore she did not need to be physically present in the Spa. Upon receipt of the telephone call, she would ring up the parlor and tell the masseuse about the date and time of the appointment. She would collect the daily takings from the masseuses and then handed them to Ms Chan in the Mainland, either in Shenzhen or Foshan or Dongguan. She was still the registered owner of the telephone number of the Spa. She was also responsible for paying money to the landlord for renting the premises. She has no knowledge that the illegal workers found were holders of two-way permits. The learned Magistrate after listening to the facts and hearing mitigation sentenced the Appellant to 4 months imprisonment. She now appeals against the sentence. By sentencing the Appellant to 4 months imprisonment after plea, obviously the starting point was 6 months imprisonment which is, as pointed out by both Counsel, the maximum sentence allowed under this charge. Ms Cheung, very fairly, conceded that the facts in this case were of such a nature that it did not warrant the imposition of a maximum starting point. I have to agree with her. Therefore on that basis, this court has to reconsider the sentence. As Mr Richmond correctly pointed out the only charge that the Appellant faces in this case in one of the managing an unlicensed massage establishment. She has not been charged with employing persons who are not lawfully employable. The fact is that she did start the beauty salon at the premises and it is not contested that at some stage in 2007 she had sold it to the lady Ms Chan who then proceeded to employ the Appellant. The facts, which were admitted, would appear to show that the Appellant was managing the establishment, in that she was responsible for taking customers orders and directing the masseuses and also handling the money and paying the rent. So she did play, if not a main part, a very important part in this establishment. The aggravating feature in this case, as far as I can see, is the fact that there were a total of four persons found connected to this massage establishment, who were not lawfully employable. The Appellant stated that she did not know, first of all, that she needed to apply for a license for a massage establishment. Secondly, she did not know that these people were found on the premises were not legally employable. I would give the benefit of the doubt to the Appellant in this case for the purposes of sentencing that she did not realize that a license was needed for a massage establishment. It is not disputed that she had sold the business in November 2007 but she had not changed the telephone number of the parlor as it was still registered in her name. It would appear that if she was conscious of the fact that she was running an illegal establishment she would have tried to divorce herself totally from the establishment. So in this case, I therefore give her the benefit of the doubt. As to the unlawfully employable person found on the premises, she is not charged with offence of employing them. Again, I would give her the benefit of the doubt. The Appellant is aged 57 and had a clear record and that works in her favour. So that balances out the aggravating feature that four illegal workers were found on those premises. It is a serious offence because Hong Kong is trying its best to stamp out these illegal massage parlous, which is often places where vice establishments are also run. Mr Richmond had correctly pointed out there is no evidence that there were any vice activities offered in this case. Therefore, I agree that for offences of this kind an immediate custodial sentence is necessary. Because of the special facts in this case, this establishment was found in Discovery Bay which is normally not a hot bed of illegal establishments. There was no illegal vice activities offered or even proposed. Taking into account these matters, I would therefore consider that a 3 months starting point in this case is appropriate. Because of the Appellant s plea, it is reduced to 2 months. Further, I have to consider in this case the probation officer s report, which was called for by the learned Magistrate, which gives details of the background of the Appellant. She is aged 57, she has a led law-abiding life up to the present. She is well-educated. She is a housewife. Because of the fact that she had a heart surgery, some years ago, she is also on medication. Because of that background, I consider therefore that the chance of her re-offending is slight. I accept the probation officers view. I, therefore, in this case, take the extraordinary course for an offence of this nature, by suspending the sentence. It is purely on these particular facts that I do so. So, I will suspend the 2 months imprisonment for a period of 18 months. (E Toh) Deputy High Court Judge Ms Kathie Cheung, Senior Public Prosecutor, for the Respondent Mr Martyn Richmond, instructed by Messrs S.H. Chan & Co., for the Appellant PAGE - A B C D E F G H I J K L M N O P Q R S T U V A B C D E F G H I J K L M N O P Q R S T U V 1udk 1udk HCMA.dot setup Microsoft Word 9.0 Title Microsoft Word Document MSWordDoc Word.Document.8