Huang Xiaoyue v Public Prosecutor

Huang Xiaoyue was the sole shareholder and director of the company operating Four Seasons Spa. The spa had no licence under the Massage Establishments Act 2017 but had permission to operate as an exempted establishment, which required massages to be given in full public view. On 17 September 2019 police found the spa operating with rooms with doors, in breach of the exemption conditions, and staff were told to lock the premises. On 9 December 2019 police found it operating again. Customers testified that the spa was operating on both days, and two said they were offered sexual services, which they declined. On 17 September 2019 she had also been convicted of an earlier s 5(1) offence and fined $7,000, so she was liable as a repeat offender under s 5(4)(b).

She claimed trial to two charges under s 5(1). Her defence was that she had taken reasonable care and had told her staff not to operate, though she admitted being careless in leaving the operations to them. The District Judge convicted her and imposed 12 weeks' imprisonment on each charge, to run consecutively, for 24 weeks in total. She appealed against sentence only in Magistrate's Appeal No 9159 of 2022. A Young Independent Counsel was appointed to assist on the sentencing framework.

1. Whether a sentencing framework should be adopted for offences under s 5(1) punishable under s 5(4) of the Massage Establishments Act.
2. What form that framework should take, and where the custodial threshold lies.
3. Whether the appellant's sentence was manifestly excessive.

The court agreed that a framework was needed because lower courts had taken inconsistent approaches, but confined it to s 5(1) offences, as advertising and landlord offences raise different considerations. It preferred a benchmark approach over the matrix proposed by the appellant and the bands proposed by the Young Independent Counsel. Having reviewed 69 unreported precedents, it found that the offence overwhelmingly took two forms: an exempted establishment found breaching the full-public-view condition, and the same situation with an offer of sexual services. The relevant factors were few, the offence is a strict liability regulatory offence where parity matters, and a benchmark is easy to apply.

The custodial threshold is crossed when both harm and culpability are more than low, for example where vice is detected and the offender is a repeat offender. For offenders who claim trial, the benchmarks are a fine of $5,000 or $10,000 for first-time offenders in non-vice and vice cases, and a fine of $15,000 or five weeks' imprisonment for repeat offenders with a single non-vice antecedent. The court listed factors that could adjust these, including scale, profit, location, duration, the nature of any breach of the exemption, and the offender's knowledge and involvement.

Applying the vice benchmark for a repeat offender, the court noted the single establishment, the short offending, the lack of remedial action after the first check and the permanent doors she had ordered put back. An uplift was warranted because she had been found on two previous occasions to have carried on vice-related activities at the same spa. But the court disagreed that her defence at trial showed a lack of remorse, since she was entitled to run it and her remarks acknowledged some responsibility. An uplift of four weeks per charge was appropriate, and consecutive sentences remained proper for offences on separate occasions.

The High Court allowed the appeal against sentence, set aside the aggregate sentence of 24 weeks' imprisonment, and imposed nine weeks' imprisonment on each charge, running consecutively, for an aggregate of 18 weeks' imprisonment.