State v Laojindamanee - Sentence [2013] FJHC 20; HAC323.2012 (25 January 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Consolidated Crim. Case No: HAC323 of 2012
(comprising 324/12, 325/12, and 364/12)

BETWEEN:

THE STATE

AND:

PHANAT LAOJINDAMANEE
LUM BING
ZHANG YONG
JASON ZHONG

Counsel : Ms S. Puamau with Mr. R. Prakash for the State
Mr. A. Vakaloloma for first accused
Mr. I. Fa for second accused
Mr. A. Naco for third accused
Mr. G. O'Driscoll for fourth accused

Dates of Trial : 19 November – 13 December 2012
Date of Sentence : 25 January 2013

SENTENCE

[1] On the 7th September 2012 a small party of two men and three women arrived at Nadi Airport on a flight from Hong Kong. They had left Bangkok two days earlier. The three ladies were young Thai nationals who had never been to Fiji before. One of the men was also Thai and the other a Hong Kong citizen. This Hong Kong national had been to Fiji before to conduct the business of sea-weed export to Asian markets. The three ladies had been "recruited" in Thailand to come to Fiji for a week to do massage work at a daily rate of US$300. The two men had been appointed to accompany them on the journey, with the Hong Kong man specifically to shepherd them through an overnight stay in Hong Kong. They were met at Nadi by a Chinese Fijian who drove them to Suva and remained with them for the next few days as a driver and escort. In Suva they were introduced to another Chinese Fijian who was seemingly in control.

[2] The girls were shocked to discover that they were expected to provide sexual services, not massages during their stay here. After two days of forced prostitution they complained vehemently to the "boss" who told them that unless they paid for their return tickets to Bangkok they had to stay and "service" any customers brought to them. They were later able to alert a young lawyer whom they had befriended to their plight and the authorities were informed.

[3] That then is the general factual matrix behind the six counts faced by the accused in this trial.

[4] The Thai ladies were the victims, two of whom gave evidence at trial, the other having returned earlier to Bangkok for personal reasons.

[5] The first and second accused were the Thai man and Hong Kong man respectively who accompanied and facilitated the journey of the victims from Bangkok via Hong Kong to Nadi.

[6] They faced jointly the following two charges of aggravating trafficking in persons:

FIRST COUNT
Statement of Offence

AGGRAVATED TRAFFICKING IN PERSONS: Contrary to section 112(5) and section 113(1)(a)(i) of the Crimes Decree, 2009.

Particulars of Offence

PHANAT LAOJINDAMANEE and LUM BING, between the 5th day of September 2012 and the 7th day of September 2012, with intent that KWANCHANOK KUNOK be exploited after arrival in Fiji, facilitated the entry of KWANCHANOK KUNOK into Fiji, and deceived the said KWANCHANOK KUNOK about the fact that the arrangements for the said KWANCHANOK KUNOK's stay in Fiji would involve her exploitation.

SECOND COUNT
Statement of Offence

AGGRAVATED TRAFFICKING IN PERSONS: Contrary to section 112(2) and section 113(1)(a)(i) of the Crimes Decree, 2009.

Particulars of Offence

PHANAT LAOJINDAMANEE and LUM BING, between the 5th day of September 2012 and the 7th day of September 2012, with intent that AIMPIKA JUMRAT be exploited after arrival in Fiji, facilitated the entry of AIMPIKA JUMRAT into Fiji, and deceived the said AIMPIKA JUMRAT about the fact that the arrangements for the said AIMPIKA JUMRAT's stay in Fiji would involve her exploitation.

[7] After trial they were found not guilty of this offence but guilty of the lesser offence of trafficking contrary to section 112(5) of the Crimes Decree which offence has a maximum penalty of 12 years imprisonment.

[8] The driver/escort/minder is the third accused who is a Chinese Fiji citizen. He faced two charges of domestic trafficking which read as follows:

THIRD COUNT
Statement of Offence

DOMESTIC TRAFFICKING IN PERSONS: Contrary to section 115(3) of the Crimes Decree, 2009.

Particulars of Offence

ZHANG YONG, on the 7th day of September 2012, facilitated the transportation of KWANCHANOK KUNOK from Nadi to Suva and deceived the said KWANCHANOK KUNOK about the fact that arrangements made for KWANCHANOK KUNOK following the transportation would involve the provision by KWANCHANOK KUNOK of sexual services to others.

FOURTH COUNT
Statement of Offence

DOMESTIC TRAFFICKING IN PERSONS: Contrary to section 115(3) of the Crimes Decree, 2009.

Particulars of Offence

ZHANG YONG, on the 7th day of September 2012, facilitated the transportation of AIMPIKA JUMRAT from Nadi to Suva and deceived the said AIMPIKA JUMRAT about the fact that arrangements made for AIMPIKA JUMRAT following the transportation would involve the provision by AIMPIKA JUMRAT of sexual services to others.

He was found guilty of these counts in the unanimous opinion of the assessors and convicted accordingly. The maximum penalty for this offence is also a term of 12 years imprisonment.

[9] The "man in charge" in Suva who told the ladies they had to stay and work unless they repaid the fares, faced two charges of sexual servitude. They read:

FIFTH COUNT
Statement of Offence

SEXUAL SERVITUDE: Contrary to section 106(1) of the Crimes Decree, 2009.

Particulars of Offence

JASON ZHONG from the 9th day of September 2012, at Suva in the Central Division, with intent to cause sexual servitude, threatened to enforce a claimed debt of $1,900.00 against KWANCHANOK KUNOK if KWANCHANOK KUNOK refused to provide sexual services to others, which conduct caused the said KWANCHANOK KUNOK to enter into sexual servitude.

SIXTH COUNT
Statement of Offence

SEXUAL SERVITUDE: Contrary to section 106(1) of the Crimes Decree, 2009.

Particulars of Offence

JASON ZHONG from the 9th day of September 2012, at Suva in the Central Division, with intent to cause sexual servitude, threatened to enforce a claimed debt of $1,900.00 against AIMPIKA JUMRAT if AIMPIKA JUMRAT refused to provide sexual services to others, which conduct caused the said AIMPIKA JUMRAT to enter into sexual servitude.

[10] He was also found guilty in the unanimous opinion of the three assessors and convicted accordingly. Sexual servitude is a serious offence carrying a maximum penalty of 15 years imprisonment.

First and Second Accused

[11] The first accused is a Thai national aged 65. He has a wife who is bedridden and 7 adult children. He claims to be a farmer and to have high blood pressure. Throughout the trial his defence was that he came to Fiji to investigate employment as a cook, and then later to investigate investment in massage parlours. He met the ladies for the first time on the airplane from Bangkok to Hong Kong.

[12] The evidence however disclosed a totally different story. Arrangement had been made in August 2012 with a Hong Kong businessman "Allen", living in Bangkok to escort the ladies to Fiji, and at one time he had had a meeting with the second accused in a hotel coffee shop in Bangkok along with Allen when they discussed bringing people into Fiji. The first accused met the girls at Bangkok airport where he gave them US$300 each (which Allen had given him) to be used as evidence of being genuine travelers both in Hong Kong (in transit) and in Fiji. He accompanied them along with the second accused at the Hong Kong hotel stop-over, he translated for them at Hong Kong airport when the validity of the tickets was called into question, he introduced them to the third accused on arrival at Nadi airport where his description had been forwarded. For the next 3 or 4 days he remained with the group, was present at all meetings and translated matters when necessary. He was staying at the Peninsula Hotel with the girls when the Immigration Department came to rescue them from their ordeal.

[13] The second accused gave evidence that he knew "Allen" from previous business dealings and when Allen heard in August 2012 that Lum Bing was returning to Fiji again Allen asked him if he would accompany "a friend" to Fiji who was going there to be a cook. Allen booked the tickets for him and said it would be easier for the "friend" if somebody went with him to help him. Lum Bing confirmed that he had met the first accused at a meeting in a Bangkok hotel, and the next time he saw him was at the airport with Allen. Allen gave him a hotel voucher for a hotel in Hong Kong for the one night transit stay. When they got to Hong Kong the first accused told him that he was with three ladies, so he took the first accused and the ladies to the hotel in a distant part of the city. The names of the ladies just happened to be on the voucher. He checked everybody in including himself, using his Hong Kong identity card and he gave the key cards to the girls. He had dinner that night with them and then sent them by taxi to the night life area of Hong Kong. The next day he facilitated their check-in at Hong Kong airport when their tickets were found to be irregular by paying an additional HK$3000 to validate them. He then flew with them to Nadi.

[14] The evidence shows some very important factors to be considered in sentencing of the first and second accused.

(i) the transportation (or trafficking) of the girls was a well planned operation;

(ii) both the first and second accused did acts to facilitate or otherwise assist that trafficking;

(iii) neither the first or second accused could have been as unwitting of the circumstances as they claim to be.

(iv) this criminal enterprise had all the hallmarks of international organized crime as the State submit in their very comprehensive and helpful submissions: "It is apparent that [the 1st accused and the 2nd accused] were responsible for representing and protecting the interests of an organized crime boss out of Bangkok, Thailand."

Sentencing for Trafficking

[15] There has been only one previously decided case in Fiji for the crime of trafficking in persons and even that is not particularly apposite to the facts of the within case. It does however provide useful reference points to aspects of the crime and Goundar J has made some very useful observations. In Murti HAC195/2010, [2010] FJHC 514, the accused deceived seven Indian nationals into promises of employment in New Zealand and then in obtaining large amounts of cash from each victim he facilitated their transport from India, through Fiji. Unbeknown to the victims, the accused intended to abandon the men in Fiji, there being no jobs in New Zealand as promised. The crime was discovered fortunately at the border.

[16] In sentencing the accused to a term of six years imprisonment, Justice Goundar did not consider it to be the worst case of trafficking. The victims were not physically exploited and there was no sexual element to the crime which is present more often than not in human trafficking cases.

[17] Goundar J said this (at para 20):

"Trafficking in persons is a human right (sic) issue. Traffickers are motivated by greed to take advantage of vulnerable victims. Traffickers use coercive tactics including deception, fraud, intimidation, isolation, threat and use of physical force, and/or debt bondage to control their victims. The victims are generally subjected to degrading forms of exploitation such as forced prostitution, domestic servitude and other kinds of work."

[18] Such sentiments are very appropriate to this case. The victims being ladies from poor families in Thailand were very vulnerable and impressionable. They were promised very good money for massage work in a place that was described to them as a paradise," living by the sea with private yachts moored nearby"; only to arrive here and find themselves isolated, threatened and forced to perform sexual acts against their will while living in small hotel rooms far from the resorts described to them in Thailand.

[19] It is highly aggravating that Fiji should be a destination for such criminal activity; a country praised by tourists and other visitors for its natural beauty and the friendliness of her people. The authorities of this country, not expecting the fruits of organized crime to reach our shores, are not adequately prepared to detect and protect Fiji against such immorality.

[20] In sentencing for trafficking in persons, regard must always be had to

1. the comity of nations;
   
2. the abuse of the reputation of the destination nation.
   

[21] Fiji is known throughout the world as a friendly, easy going nation and the last thing Fiji would want is to be regarded as a "soft touch" for organized crime syndicates who would want to vitiate that reputation with drugs, corrupt money or prostitution. Every endeavour must be made to deter would be international criminals from such activity. If the passing of robust sentences on those trafficking in persons sends that message then so be it.

[22] The comity of nations is the international courtesy between nations in which recognition is accorded to the laws and customs of each State in reciprocity. To invade a friendly nation with drugs, dirty money or immigrants for sexual purposes abuses that international protocol and once again would require heavy sentences on offenders as an example to others.

[23] The decided cases in the UK have handed down very heavy penalties on human traffickers, In the case of Shaban Maka [2004] EWCA 3365 a Lithuanian young lady had been tricked into the United Kingdom by the promise of a well paid job. She was sold to a man for £4000, raped and forced to work in a brothel. After being sold six times she managed to escape and contact the Police. Consecutive sentences totalling 18 years imprisonment were imposed and the sentencing judge said that human trafficking was an international problem which produced untold misery throughout the world. The conduct had echoes of slavery with the victim being sold from one procurer to another.

[24] For this offence of trafficking I take a starting point of six years imprisonment. I regard the following as highly aggravating features:

(i) the victims were vulnerable from poor families and had little command of the language and customs of their new "host" country;

(ii) they were brought into isolated and not particularly pleasant accommodation;

(iii) they were immediately forced into prostitution against their will.

[25] For those features and of the matters I refer to in paragraphs 20, 21 and 22, I add five years to the sentence making an interim total of eleven years.

[26] Neither the first accused, nor the second accused have much to offer in the way of mitigation. They have both shown a distinct lack of remorse at trial, saying in the light of overwhelming evidence against them that they were innocent dupes in the scheme of arrangement.

[27] Both accused submit that they are but unsophisticated players with no previous criminal history and they were unwittingly caught in this net of international trafficking. The first accused pleads his advanced age in mitigation. Such people are nearly always used by organized crime syndicates as the "foot soldiers." There is no evidence of the fact, but it is almost certain that they would have been offered rewards either in cash or advantages to so facilitate the entry of the girls to Fiji. No sympathy can be extended to persons who do so assist in this nefarious trade and the fact that they regard themselves as innocent dupes cannot be reflected in a discount on sentence.

[28] Both have spent a little over 4 months in custody awaiting trial and both have difficult family circumstances in their respective home countries.

[29] From an interim total of eleven years, I deduct one year to reflect their mitigation, their time spent in remand and their clear records in Fiji.

[30] For the first count both the first and second accused will spend ten years in prison, and they will serve a concurrent term of imprisonment of the same amount for the second count. Each will serve a minimum term of nine years before being eligible for parole.

Third Accused

[31] Zhang Yong in being found guilty of two counts of domestic trafficking in persons contrary to section 115(3) of the Crimes Decree, faces a similar maximum penalty of twelve years imprisonment.

[32] The charges against him are reproduced above at para 8.

[33] The facts disclose that the day before the party arrived at Nadi, he had in the company of the fourth accused, hired a small van from a car rental desk at the Holiday Inn in Suva, and had then driven to meet the girls and the first and second accused when they arrived. He then drove them all back to Suva where they were immediately introduced to the fourth accused and then housed in the Holiday Inn. Throughout their stay in Fiji until they were rescued on the morning of the 13th September, the third accused was their driver and escort, driving them to and from meetings with others and on the evidence of both victims arranging clients for sexual services.

Although he is charged only with facilitating the transport of the ladies from Nadi to Suva and convicted of that offending, his subsequent actions can be seen as evidence of his complicity in the scheme of arrangement and his knowledge of the purpose of the ladies' presence in Fiji.

[34] In mitigation, counsel tells me that this accused is 52 years old and is a citizen of Fiji, having lived here for 15 years. He operated a garment factory which closed down in 2008. He rents a house in Laucala Beach which figured largely in the trial because it was there that the ladies were taken for two nights after they left the Holiday Inn, and to where "clients" were brought to them. He has no previous record in Fiji. He has very elderly parents in China that he provides for. He claims to be remorseful.

[35] Mr. Naco submits that I should have regard to the fact that he kept them at his home and provided for them and was a good host to them, but then a good host does not make his guests provide sexual services for money. They were kept in his home for the convenience of clients that he was arranging for them.

[36] Domestic trafficking in persons as charged involves the transportation of victims within Fiji and those victims are deceived by the transporter that on delivery the victims will have to provide sexual services.

[37] The State invites me to find that the culpability of the third accused is more serious than that of either the first and second accused on the basis that he was very much involved in their sexual exploitation in Suva.

[38] I cannot agree. The accused is charged with domestic trafficking only and must be sentenced for that only. It is apparent that the charge he has been convicted of does not truly reflect his culpability but I cannot import additional factors into the sentence for the charge he has been convicted of. His activities involving the victims in Suva is certainly evidence I can take into account in finding that he has deceived the ladies and that will be an aggravating feature of his crime. The elements of this trafficking offence are the same as the trafficking discussed earlier but without the international component and the starting point should therefore be a little less than that taken for the first and second accused.

[39] I take a starting point for the offence of domestic trafficking of five years. For the aggravating features previously referred to and for his role in arranging their prostitution while they were in Suva, I add four years to the sentence bringing it up to nine years. For his very limited mitigation which includes his clear record and time spent on remand, I deduct one year meaning that the final sentence for Zhang Yong will be one of eight years. He will serve a minimum of seven years before being eligible for parole. This is the sentence he will serve concurrently for both counts three and four.

Fourth Accused

[40] Jason Zhong has been convicted of two counts of sexual servitude contrary to section 106(1) of the Crimes Decree 2009. The charges are reproduced above at para 9.

[41] Sexual servitude is defined in the Crimes Decree as the condition of a person who provides sexual services and who, because of the use of force or threats is not free to leave the place or area where the person provides sexual services.

[42] When the group having arrived in Nadi from Thailand, were taken to Suva by the third accused, they were taken immediately to a Chinese restaurant in the City where they were introduced to the fourth accused as "the boss in Fiji." The party was then taken to the Holiday Inn where Jason checked them in. Before going to their rooms, he (the fourth accused) told the ladies that they don't have to worry, he is the boss in Fiji and he has "friends, money and power." He visited the girls the following day (8th September) and on the 9th September they were asked to check out of the Holiday Inn and were taken to another Chinese restaurant at Walu Bay. Above this restaurant was a massage parlour and the ladies were taken up there with their luggage. They rested there a while until one of the girls ("Nikki") came back from what they had thought to be massage duties and told the other two that they were expected to offer sexual services as well as massage. The two ladies who gave evidence said they were upset and crying and wanted to go home. They went to talk to Jason (the fourth accused) who was there and told him they wanted to go but he got angry, banged the table and said that if they wanted to go they had to repay $1,900 (currency unspecified) for the cost of the tickets. The girls had some money but nowhere near this sum, so they felt helpless and had no option but to stay and prostitute themselves.

[43] The maximum penalty for the offence of sexual servitude is a term of imprisonment of fifteen years, and is obviously regarded by the legislature as being more serious than trafficking in persons.

[44] It is unfortunate that this demand, thereby creating the sexual servitude, was the culmination of the whole planned enterprise of trafficking persons for prostitution.

[45] The fact that it was an organized crime enterprise was apparent throughout the trial with references to persons in Thailand, China and Fiji who were involved in the project. There was evidence that the fourth accused had made a claim that he was the "mafia boss in Fiji" and he is to be regarded then as a pinnacle of the organization putting this operation into effect.

[46] State Counsel refers me to a previous conviction of the fourth accused. He was convicted and sentenced in July 2005 along with 5 other accused for his role in a large scale manufacture of methamphetamine. The sentencing Judge in his judgment of 27 July 2005 said this:

"It was Jason (the present fourth accused), perhaps inspired by meetings with the head of an Asian Drugs Cartel, Andrew Lam, who procured the materials and facilitated the construction of this illicit drug manufacturing plant."

[47] Not only does this previous conviction deprive the fourth accused of the benefit of a clear record in Fiji, it serves as evidence that for a second time in less than five years Jason Zhong has acted in concert with organized crime operatives to attempt to destroy Fiji's reputation; first by manufacturing large amounts of dangerous drugs and secondly now by involving himself in trafficking persons for prostitution.

[48] As was the case with the third accused, the charge that the fourth accused faces on this Information does not reflect his true culpability in this case and I am constrained to sentence him only for what he has been convicted of, and nothing else, but his involvement as the head in Fiji of an international organized crime must be aggravation of the most serious kind.

[49] The Court is referred to two Australian cases of sexual servitude where clearly lenient sentences were handed down. In R v Netthip [2010] NSWDC 159 the accused entered a plea of guilty to sexual servitude and was sentenced to two years and three months imprisonment. The case can be distinguished however in that there was a plea of guilty and secondly that the Thai girls who were said to be in servitude had previously worked in the sex industry in Thailand and were aware that they were being taken to Australia to work in brothels as sex workers.

[50] In Sieders v R: Somsri v R [2008] NSWCCA 187 an appeal against five years imprisonment was dismissed. However in distinguishing these 2 cases, again the women were not deceived but had agreed by contracts entered into in Thailand that they were going to Australia to work in brothels. In the appeal Campbell J.A. said:

"For someone to be denied personal freedom, concerning so intimate a matter as with whom and under what circumstances they will have sexual relations, is an inherently serious matter."

[51] In an affidavit filed along with an earlier bail application, the fourth accused deposes that he has extensive property and agricultural investments in Fiji and employs up to 10 to 20 staff on his ginger farm. He gave himself up to this enquiry when he heard that he was a suspect. His counsel submits that he is totally remorseful which flies in the face of a further submission that he was asked to be involved in these matters as an interpreter only; a claim that the assessors obviously rejected. He has handed up three letters attesting to his good character but two of those can be dismissed because the referees have given a wrong name for him.

[52] To keep a woman (or a man for that matter) in sexual servitude completely denies the victim the right to choose whatever she or he does with her or his body. It is the ultimate denial of a basic human right and reduces the victim to a deplorable and degrading condition depriving her or him of a basic right to human dignity and freedom of choice. When that deprivation is coupled with international organized crime activity then a harsh sentence is expected by the community and warranted in sending a signal abroad that Fiji will not tolerate being an end destination for any organized crime trafficking be it in drugs, money or human beings.

[53] I take a starting point for this crime of sexual servitude of eight years. To reflect the serious aggravating features of organized crime I enhance that sentence by four years bringing it to twelve years. He has very little mitigation available to him; I find that despite his counsel's plea he has no remorse and he was on bail prior to the trial save for a period of a few weeks. I do however allow him three months for that, for his lessor's letter of recommendation and for the fact that he did co-operate with the authorities to a limited extent.

[54] For the fifth count, the fourth accused will serve a sentence of imprisonment of eleven years and nine months and he will serve a minimum term of ten years before being eligible for parole.

[55] For the sixth count he will serve the same terms concurrently.

[56] In summary therefore the following sentences are handed down in this case:

Phanat Laojindamanee

Count one - ten years

Count two - ten years, concurrent

(Minimum term of nine years)

Lum Bing

Count one - ten years

Count two - ten years, concurrent

(Minimum term of nine years)

Zhang Yong

Count three - eight years

Count four - eight years, concurrent

(Minimum term of seven years)

Jason Zhong

Count five - eleven years, nine months

Count six - eleven years, nine months, concurrent

(Minimum term of ten years)

[57] All sentences will run from the date of conviction, the 13th December 2012.

Paul K. Madigan
JUDGE

At Suva
25 January 2013