Public Prosecutor v Quek Chin Choon
[2014] SGHC 268

Case Number	:	Magistrate's Appeal No 50 of 2014
Decision Date	:	22 December 2014
Tribunal/Court	:	High Court
Coram	:	See Kee Oon JC
Counsel Name(s)	:	Sanjna Rai and Nicholas Wuan Kin Lek (Attorney-General's Chambers) for the prosecution; Peter Ong Lip Cheng (Templars Law LLC) for the accused.
Parties	:	Public Prosecutor — Quek Chin Choon

22 December 2014

Judgment reserved.

See Kee Oon JC:

1       These are cross-appeals arising out of the accused’s conviction following trial in the District Court on five charges of having knowingly lived on the earnings of prostitution, an offence under s 146(1) of the Women’s Charter (Cap 353, 2009 Rev Ed), which reads as follows:

Persons living on or trading in prostitution

146.—(1) Any person who knowingly lives wholly or in part on the earnings of the prostitution of another person shall be guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding 5 years and shall also be liable to a fine not exceeding $10,000.

He was fined $8,000 on each charge, making a total fine of $40,000. No term of imprisonment was imposed. The District Judge’s grounds of decision have been published as Public Prosecutor v Quek Chin Choon [2014] SGDC 211 (“the GD”). The accused has appealed against his conviction and the prosecution has appealed against the sentence imposed.

2       In brief, the facts are that the accused was a freelance photographer who took photographs of various women working as prostitutes for the purpose of advertising their services on an adult website. He did so knowing what their occupation was and he received monetary payment from them in return. The essence of the parties’ cases may be simply stated in terms of the characterisation they seek to place on the conduct of the accused.

3       The accused has depicted himself as a person providing bona fide photography services to the world who was guilty of nothing more than having had prostitutes as customers. These services would ordinarily be perfectly legitimate and legal, he argues, and he should not be saddled with a criminal conviction just because he happened to provide them to women involved in this particular trade. By contrast the prosecution has cast him as one who was effectively a “consultant” to the prostitutes. Thus, far from being a relatively passive bystander, the accused had played an integral part in promoting prostitution. The prosecution contends that the District Judge failed to appreciate the extent of the accused’s role and culpability in the matter and that the sentence imposed on him should therefore be increased.

Facts

4       The five charges against the accused pertain to his dealings with five female Chinese nationals all of whom worked as prostitutes in Singapore in that they provided sexual services in exchange for monetary payment. Some of these women came to Singapore intending from the outset to work as prostitutes; others formed that intention subsequent to their arrival here. None of them had yet commenced work as prostitutes when they first met the accused. All of the women recounted that he was introduced to them as someone who could help them to attract customers, ie, persons to whom they would provide sexual services. The understanding was that the accused would take photographs of the women and put them on the Internet to advertise their services.

5       That was what the accused did. He took photographs of the five women in various suggestive poses clad only in their underwear or at any rate with barely any clothes on. He edited these photographs in order to enhance the sexual attractiveness of the women. He created a website and put up profiles of the women on it. The content of these profiles included the photographs he had taken of them, descriptions of certain of their physical characteristics and vital statistics, a catalogue graphically describing the sexual services they were willing to provide, and a telephone number at which they could be contacted.

6       There is no doubt that the website was and was meant to be a mode of advertising the sexual services of the women. The accused gave each woman a nickname by which she was known on the website so that potential customers could remember them with greater ease. He also posted reviews of their customers’ feedback and provided links to his website on the forum of another website known as “Sammyboy”; it is not disputed that sexual services are commonly advertised and sought on that forum. All five women testified that they were contacted by customers within days of the appearance of their profiles on the accused’s website and that they proceeded to provide sexual services to those customers.

7       The accused charged the women a fee for his photographic and advertising services. The quantum of that fee was variable, as was the question of whether it was a one-time payment or a recurring sum. One paid $300, another paid $1,500 being $500 a month for three months, and the others paid $500 – at least one of these women was to have paid $500 a month but was arrested by the police before the time came to make further payments.

8       Common to all the women is that they did not remunerate the accused immediately after he had taken their photographs. This is because they lacked the financial means to do so at that time. The accused agreed that they could pay him later; as the accused put it in submissions, in effect he extended credit to them. The women went on to earn money through the provision of sexual services to customers. With this income, all of them managed within days to discharge the debts that they owed to the accused.

The appeal against conviction

The elements of the offence

9       In Public Prosecutor v Liew Kim Choo [1997] 2 SLR(R) 716 (“Liew Kim Choo”), Yong Pung How CJ set out (at [32]) four “major elements” that the prosecution had to prove beyond reasonable doubt in order to make out the offence under s 146(1) of the Women’s Charter. These elements were presumably distilled from the words of the statute and they are that:

(a)     Prostitution took place;

(b)     Earnings were made from that prostitution;

(c)     The whole or part of those earnings or the benefit of those earnings were received by the accused; and

(d)     The accused received those earnings or their benefit with the knowledge that they were earned through prostitution.

10     I have no doubt that these four elements, thus expressed, were all present in the instant case. In my view, that determination merely raises the further question of whether these elements are necessary but not sufficient conditions of criminal liability under s 146(1) of the Women’s Charter, but before I turn to address that question, I shall consider each of the elements in turn.

First element: that prostitution took place

11     As to the first element, following the guidance of Yong CJ in Liew Kim Choo at [36], the prosecution had to prove that the five women had indiscriminately offered their bodies for sexual activity with customers in exchange for money within or around the time frame stipulated in the respective charges, and that sexual intercourse had indeed taken place between the women and their customers pursuant to those offers. I should mention that, in my understanding, the adverb “indiscriminately” which Yong CJ employed is not meant to suggest that prostitution occurs only when a woman offers her body to all the world and engages in sexual activity with any and every person who pays the price asked for. Put another way, I do not think that the court is precluded from finding that prostitution took place just because the woman in question limited her solicitations to a class of persons only or just because she might on some previous occasion have declined for whatever reason to provide sexual services to particular individuals even though those individuals were prepared to pay.

12     Mr Peter Ong, counsel for the accused, argued that this element is not made out because the prosecution had not adduced sufficient evidence of identifiable acts of prostitution. The prosecution, he said, did not adduce evidence of the dates and times of these alleged acts of prostitution and the identities of the parties with whom the acts had allegedly taken place. When the five women and the accused were arrested by the police at two different places no acts of prostitution were taking place at either of those locations at the time; also, the prosecution had not called evidence from any of the alleged customers of any of the women.

13     I am not persuaded by Mr Ong’s contentions. It is true that when the five women testified that they had provided sexual services in return for monetary payment they were unable to identify the precise dates and times at which these things took place. But that is not fatal to the prosecution’s case because the degree of chronological exactitude required is not great; it suffices to show that the acts of prostitution took place within a range of dates or times. As to Mr Ong’s other points, I do not think that the prosecution was obliged to call the customers of the women as witnesses, still less do I think that the prosecution’s case is undermined in the slightest by the fact that the women were not arrested while engaging in acts of prostitution.

14     The evidence adduced by the prosecution consists in the main of the testimonies of the women unequivocally asserting that prostitution had taken place. There is the uncontroverted fact that through the accused’s photographs and website content, the women had all broadcast their willingness to perform sexual services for money. There is further the uncontroverted fact that, although the women lacked the means to pay the accused for his photographic and advertising services at the time these were rendered, they were able to foot the bill within a matter of days. Now it is of course possible that the women did not in fact engage in sexual activity with any customer despite their publicised readiness to do so; that they acquired the wherewithal to pay the accused within that short space of time other than by performing sexual services for money; and that they gave false testimony in court. But these are all possibilities so implausible and remote in the circumstances that they generate no reasonable doubt as to whether prostitution involving all five women had taken place.

Second element: that earnings were made from prostitution

15     Turning to the second element, the prosecution had to prove that the five women had all received remuneration for the sexual services that they provided. It is clear to me that this was established by the evidence. In the first place, it is inherently difficult to believe that the women would perform sexual services for no monetary consideration given that they had in their advertisements expressly put a price to their services. Then there is the fact, already highlighted above, that the women fairly quickly found themselves in a position to pay the accused the $300 or $500 due to him. These considerations, taken together with the testimonies of the women, lead inexorably to a finding that the second element is made out.

Third element: that the accused received the earnings

16     As to the third element, I should point out at the beginning that Yong CJ in Liew Kim Choo might have inadvertently put forward two different formulations of this element. He said at [32] of his judgment that what had to be proved was that “the whole or part of [the earnings of prostitution] or the benefit of those earnings have been received by the accused”, but at [38] he said that the third element was that “the accused person must be living either in whole or in part on those earnings”. I venture to suggest that receiving earnings and living on them are two different things; the latter may not necessarily follow from the former. I would add that if the third element is expressed in terms of living on the earnings of prostitution it simply takes us back to the plain words of s 146(1) of the Women’s Charter.

17     What I propose to do is to confine my analysis of the third element to the question of whether the accused received the earnings of prostitution. I leave for later discussion the question of whether that amounts to living on those earnings. Mr Ong organised his submissions such that, under the heading of the third element, he raised for my consideration a number of hypothetical scenarios: say a landlord rents out a room to a woman or a convenience store employee sells condoms to her and both of them know full well that she is a prostitute. Surely, said Mr Ong, the landlord and the convenience store employee ought not to be guilty of an offence. Seeing as this amounts to an argument that a restrictive meaning should be given to the notion of living on the earnings of prostitution, I will deal with it later and not under the rubric of the third element.

18     It is plain to me that the accused in this case received the earnings of the prostitution of the five women. I return yet again to the fact that the women were initially unable to pay the accused but found the means to do so after advertisements for their sexual services had been put up on the accused’s website. There is no doubt that, as all five women testified, the $300 or $500 or, in one case, $1,500 which they paid to the accused was money that they had earned from their prostitution.

19     The accused sought to characterise this as his having extended “credit” to the women. I accept this as a fair characterisation of the payment arrangements in the sense that the accused received payment only after he had rendered his photographic and web services. But I do not see how this assists the accused. The fact remains that the women acquired the financial ability to pay him through their prostitution; they would not have been able to pay him but for their prostitution. Therefore when he received payment from them he received the earnings of prostitution.

20     Moving away from the facts of this case, suppose a person advertises the sexual services of a woman for a fee and demands that she pay his fee before she has been paid by any customer. It does not ineluctably follow from my decision in this case that such a person has not received the earnings of prostitution. Should a situation of this sort arise, it will be for the trial judge to determine, in the circumstances of the case, whether that person could be said to have received the earnings of prostitution.

Fourth element: that the accused knew that the earnings were earned through prostitution

21     As regards the fourth element, there can be no doubt that the accused knew full well that the money he received from the five women had been earned through prostitution. Having come into contact with the women for the very purpose of facilitating their search for consumers of their sexual services, and being well aware that the women were initially so short of funds that they could not pay him at once, he cannot but have known that the money which they subsequently paid to him was money which they had earned by providing sexual services. I can discern no other way of looking at the facts.

The meaning of “living on” the earnings of prostitution

22     So much for the four elements set out in Liew Kim Choo. As I have foreshadowed, the fulfilment of all these elements may not mean that there has been an offence under s 146(1) of the Women’s Charter; it may well be that the elements are necessary but not sufficient conditions of criminal liability.

23     I return to the hypothetical scenarios posited by Mr Ong – the landlord who rents a room or the convenience store employee who sells condoms to a woman they know to be a prostitute (see [17] above). These examples can be multiplied; Yong CJ in Liew Kim Choo, for instance, contemplated (at [40]) a situation in which a prostitute donates some money every week to a beggar who is aware of her occupation. I agree with Mr Ong that these hypotheticals illustrate the need to keep s 146(1) of the Women’s Charter within proper bounds; read too broadly, it would ensnare the landlord, the convenience store employee and the beggar even though none of them deserve to be labelled a criminal.

24     The question then is how the limits of the statutory provision may be delineated. In Liew Kim Choo, Yong CJ considered (at [40]) that the case before him was clear enough that there was no need for him “to develop a test that would allow the section to achieve its purpose without being lent to obvious injustice”. I am similarly of the view that the instant case is far away from that of the landlord and the beggar and very obviously falls on the other side of the line. Nonetheless, since counsel helpfully directed my attention to the English case of Shaw v Director of Public Prosecutions [1962] AC 220 (“Shaw”) in which the House of Lords did lay down some sort of test for what was to be considered “living on” the earnings of prostitution, I shall not leave this subject unaddressed.

25     In Shaw, the accused published a booklet most of which was taken up with the names and addresses of prostitutes. The booklet made it known that the prostitutes were offering to provide sexual services and could be reached at the telephone numbers provided. The prostitutes paid the accused for these advertisements. The House of Lords unanimously held that the accused was guilty of an offence under s 30 of the Sexual Offences Act, 1956 (c 69), which is in substance indistinguishable from s 146(1) of our Women’s Charter and reads as follows: “It is an offence for a man knowingly to live wholly or in part on the earnings of prostitution”.

26     It is apparent that all the members of the House of Lords thought that the provision should be construed narrowly so that injustice might not ensue – Viscount Simonds, for example, was at pains to emphasise (at 263): “The grocer who supplies groceries, the doctor or lawyer who renders professional service, to a prostitute do not commit an offence under the Act”. Given that my concern over the apparent width of s 146(1) of the Women’s Charter is squarely that which was addressed by the highest court in England in Shaw, I think that it is an authority that should be given substantial weight even if, as Mr Ong stressed, it is not a precedent binding on me.

27     It appears that two different tests were put forward in Shaw. One was articulated by Viscount Simonds and with its terms three other members of the court agreed; the other was formulated by Lord Reid. The tests were directed at a situation in which a person is paid by prostitutes for goods or services he has supplied to them, which was the situation in Shaw and which is the situation in the instant case. According to the majority, that person may be said to be “living on” the earnings of prostitution if he supplied the goods or services to the women for the purpose of prostitution and if he would not have supplied those things “but for the fact that they were prostitutes”. Contrariwise, he would not be “living on” the earnings of prostitution if the service which he supplied “could be supplied to a woman whether a prostitute or not” (at 264).

28     Lord Reid prefaced his speech by expressing regret at being “unable to concur in [the] reasons” given by Viscount Simonds even though he agreed with the result, ie, that the accused ought to be convicted of the offence (at 269). Lord Reid went on to say that in his view “living on” the earnings of prostitution connoted “living parasitically”, and although he seemed to think that the meaning of the word “parasitically” was self-evident he also said that a man’s occupation would be “parasitic” if “it would not exist if the women were not prostitutes” (at 270).

29     With respect, I am not entirely sure that I see any meaningful difference between the approaches of Viscount Simonds and Lord Reid. Both appear to hinge on a “but for” enquiry that can be posed as a counterfactual: if the women were not prostitutes, would the person nevertheless have supplied to them the goods or services for which he received money which was earned from prostitution? If so, then the person was not “living on” the earnings of prostitution; presumably that person is properly to be characterised as one who lived on the earnings of his trade except that his professional path (in terms of the goods or services he provided) just so happened to cross that of prostitutes, who happened to have a need for those goods or services. But if not – if the person would not have supplied the goods or services if the women were not prostitutes – then that person would be “living on” the earnings of prostitution and accordingly be guilty of the offence.

30     Applying this “but for” test to the present case I am satisfied that the accused “lived on” the earnings of prostitution. Far from what was suggested, this was not merely a case where the accused, a self-styled “avid photographer”, had been engaged as a free-lance photographer to take photographs of the five women and nothing more. He did not “just take photos and upload” them while “only entertaining his hobby”, contrary to what was suggested in Mr Ong’s mitigation before the District Court. What he did went well beyond the mere provision of photographic services such as might have been provided to people other than prostitutes.

31     Having reviewed the evidence, the proper characterisation of the accused’s conduct is that he actively promoted and advertised the sexual services of the five women. He would not have supplied these services but for the fact that the women were engaged in prostitution. I have no doubt whatsoever that they would not have approached him to take their photographs, create the webpages and advertise their sexual services for any other reason. That brings the case well within s 146(1) of the Women’s Charter. I do not see any material distinction between the instant case and Shaw and as Viscount Simonds put it there (at 264):

… [A] case which is beyond all doubt is one where the service is of its nature referable to prostitution and nothing else. No better example of this could be found than payment by a prostitute for advertisement of her readiness to prostitute herself. I do not doubt that a person who makes a business of accepting such advertisements for reward knowingly lives in part on the earnings of prostitution.

To borrow once more the language of Viscount Simonds (also at 264), the accused had in effect embarked on a “joint venture” with the women the object of which was “that they may earn money by prostitution and in turn pay him for his services”. His share of these earnings of prostitution may not have been his sole or primary source of livelihood but there is no such precondition laid down by law.

32     Even if Lord Reid’s test is substantially – if subtly – different from the majority’s in Shaw, I think that the accused could rightly be considered to have lived “parasitically” on the earnings of the prostitution of the five women. His occupation of promoting and advertising their sexual services would not have existed if those women were not prostitutes. It was therefore parasitic.

33     For completeness, I shall also deal with the point made by Mr Ong that the accused had no control whatsoever over the activities and affairs of the five women – they kept their own earnings and they made all arrangements with their customers directly without going through him. What Mr Ong says is borne out on the evidence but the simple response is that this does not assist the accused. It is not an ingredient of the offence under s 146(1) of the Women’s Charter that the accused must have exerted control over the women or acted as a middleman between the women and their customers.

Conclusion on the appeal against conviction

34     I would summarise my reasoning in the appeal against conviction as follows. The prosecution managed to prove beyond reasonable doubt the four elements of the offence under s 146(1) of the Women’s Charter as set out by Yong CJ in Liew Kim Choo at [32]. But that is not sufficient because the existence of those four elements means only that the accused received the earnings of prostitution.

35     Where, as in the instant case, the accused has been paid by women working as prostitutes for services supplied to them, in order that receiving the earnings of prostitution might amount to living on them, it must be shown that the accused supplied the services for the purpose of prostitution and that he would not have supplied them but for the fact that the women were prostitutes. This has been amply demonstrated to my satisfaction and the District Judge was fully entitled to find him guilty of the five charges. Accordingly, it follows that his appeal is dismissed.

The appeal against sentence

36     The matter of sentencing benchmarks for offences under s 146(1) of the Women’s Charter was thoroughly considered in a recent judgment of Sundaresh Menon CJ, Poh Boon Kiat v Public Prosecutor [2014] SGHC 186. An important proposition of law laid down therein is that imprisonment is mandatory for offences under s 146(1): see [28]–[59] of that judgment. Menon CJ also outlined at [74]–[78] a comprehensive analytical framework to guide sentencing decisions for these offences. But since Menon CJ decided at [113] of the judgment that he would invoke the doctrine of prospective overruling, his observations do not apply to the present case. It is to the prosecution’s credit that it pointed this out even though that judgment would have lent much support to its appeal.

37     The prosecution advanced two main submissions in its appeal against sentence. The first was that the District Judge failed to appreciate the true extent of the accused’s culpability – in particular, he erred in describing the criminal conduct as “ad hoc in nature, with the accused seizing the opportunity as it came along” (at [40] of the GD). The second was that the District Judge did not give adequate weight to the accused’s misuse of the Internet as an aggravating factor.

38     In my judgment, there is merit in both these submissions. Taking the second submission first, I agree that the accused’s misuse of the Internet was an aggravating factor and it would appear from the GD that this was not something that the District Judge took into account. As I have previously pointed out in Public Prosecutor v Tang Boon Thiew [2013] SGDC 52 at [22] and [26], using the Internet for criminal purposes brings significant advantages to an offender. It does away with the need for fixed premises and substantial manpower, thus reducing expense; it minimises the risk of detection and discovery; and in the present context of advertising sexual services it puts a larger audience of potential customers within reach. Given the ubiquity of the Internet, it is in my view necessary to deter the utilisation of that resource for unlawful ends. Hence, if misuse of the Internet is not merely peripheral but central to an offender’s criminal behaviour, it is a circumstance that warrants an increase in the sentence to be imposed. These observations are apposite in the present case.

39     Moving to the prosecution’s first submission, I agree that the District Judge took too benign a view of the accused’s culpability. Although his advertising of the sexual services offered by the women was not linked to the work of a syndicate, I do not think that his acts were “ad hoc”, and neither do I think that he should somehow be seen to be less culpable even if his acts were opportunistic. The fact is that there was a definite mode of operation on his part, to the extent that at least five women knew him to be a person who, with his photographic and Internet expertise, could help them to obtain custom. In other words, he had achieved some form of notoriety and had built up a reputation of sorts. Further, I agree with the prosecution that the accused so actively participated in the prostitution of the women that he could be considered a “consultant” to them: he even chose the monikers that they would go by, and it was his initiative to list on his website the various sexual services which they were prepared to perform.

40     I further note that the offences were committed over a period of at least five months. At any rate, this was not merely a “one-off” instance but five instances involving the same modus operandi. Even if it could be said that his was an “opportunistic” business model, he was systematic in pursuing it and had certainly not missed each opportunity as it came along. Hence the opportunism is hardly a mitigating factor; indeed it would strongly suggest that he would have continued to seize further similar opportunities which might arise had he not been caught. Such a sustained course of conduct cannot in my view be said to be “ad hoc” in nature.

41     Turning now to the sentencing precedents, the District Judge referred to three unreported cases in the GD, at [37]–[39]. These were:

(a)      Public Prosecutor v Ng Soh Sin and Tan Swee Lai Larry (DAC 12014/13 & ors, unreported). The two accused took photographs of prostitutes and uploaded them on the forum of the “Sammyboy” website to solicit for business. They also acted as middlemen between the prostitutes and the customers, in that the customers would contact them and they would arrange the sexual trysts. The accused each pleaded guilty to one charge under s 146(1) of the Women’s Charter, among other charges, and a sentence of three months’ imprisonment was imposed on that s 146(1) charge.

(b)      Public Prosecutor v Soh Wei Qiao (DAC 2971/13 & ors, unreported). The accused took photographs of the prostitutes and uploaded them on a blog he had created, together with descriptions of the sexual services they were offering. He collected $100 per month from the prostitutes and earned $56,000 up to the point of his arrest. He pleaded guilty to two charges under s 146(1) and a sentence of one month’s imprisonment was imposed on each charge.

(c)      Public Prosecutor v Tan Chin Peng Ricky (DAC 24963/13 & anor, unreported). The accused was a runner for the “Sammyboy” forum and his task was to collect monthly fees from online vice syndicates, these fees being due because the syndicates used the forum as a platform for advertising prostitution services. He also introduced a field reporter to one of the syndicates so that the reporter could write positive reviews of the syndicate’s prostitutes and so increase the syndicate’s business. The accused pleaded guilty to one charge of abetting an offence under s 146(1) and for this a sentence of one month’s imprisonment was imposed.

42     These three precedents are of some assistance although there are no written grounds for these decisions available. They bear some similarity to the present case insofar as they also involved offenders who participated in online advertisement of prostitution services. In all of them, terms of imprisonment were imposed and I do not see why it should be otherwise in this case. It should be pointed out that the accused persons in all those precedents pleaded guilty, whereas the accused in the present case claimed trial. Moreover, they faced fewer charges under s 146(1) compared to the accused.

43     I accept that three months’ imprisonment such as was imposed in the first of the three precedents would be too high in this case – the District Judge correctly noted at [37] of the GD that the two accused in that case could be said to be more culpable because they “had full control of the business side of things”. I also accept that the culpability of the accused in this case was not as great as that of the accused in the second and third of the precedents. As to the second precedent, the nature of the acts of the accused there and the accused in this case was much the same, but the conduct of the accused there spanned a longer duration and he appeared to have profited substantially more. As to the third precedent, the greater culpability of the accused there lies in the fact that syndicates were involved.

44     However, I do not think that the culpability of the accused in the instant case is very much less than that of the accused persons in the second and third precedents. As I have said, I agree with the prosecution that the accused in this case was actively involved in the prostitution of the five women in a fairly systematic way and that he was not merely an “ad hoc” participant. I am therefore of the view that the non-custodial sentences imposed by the District Judge are manifestly inadequate in view of the aggravating features. I impose instead two weeks’ imprisonment on each of the five charges, with two terms of imprisonment in respect of DAC 7700/13 and DAC 8416/13 running consecutively, making a total of four weeks’ imprisonment.

45     In addition to imprisonment, fines would be appropriate to disgorge his apparent profits, but the $8,000 fine on each charge levied by the District Judge would appear to be exceedingly disproportionate to his profits. I therefore reduce the fine to $3,000. The aggregate fine is thus $15,000. Since the accused has already paid a fine of $40,000 I order that $25,000 be refunded to him.

Conclusion

46     For the reasons above, I affirm the conviction of the accused on all five charges under s 146(1) of the Women’s Charter, and I allow the prosecution’s appeal against sentence. The accused shall serve a total of four weeks’ imprisonment in addition to the aggregate fine of $15,000 and there is to be refunded to him a sum of $25,000 which he had paid pursuant to the sentence imposed by the District Judge.