The Queen v. Kong Sun Wo and Another

CACC000136/1989

BETWEEN

Coram: Silke, V.-P., Penlington, J.A. & Hopkinson, J.

Date of Hearing: 10 May 1989

Date of Judgement: 10 May 1989

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J U D G M E N T

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Silke, V.P.:

1. Kong Sun Wo was convicted on three charges after trial before His Honour Judge Baily. The first of those was permitting a girl under 16 to be on premises for purpose of prostitution, the second of them: unlawful sexual intercourse with a girl under 16 and the third: managing a vice establishment.

2. Cheung Chiu Wah, who was D6 at trial and is aged 18, was convicted on two charges, charge 21: unlawful sexual intercourse with a girl under 16 and charge 22: living on the earnings of a prostitution. He was ordered to be detained in a Detention Centre.

3. Kong sought leave to appeal against conviction and Cheung also to appeal against conviction and if necessary sentence. Kong today applied for an adjournment which was granted to him and we need say no more about him in the course of this appeal.

4. There were six defendants originally for trial on a 22-charge Charge Sheet. Briefly, it was the Crown that a girl, Tsoi Wai Ling (PW5), came to know Cheung in June of 1988. She began an association with him. He had intercourse with her at his residence. He then arranged for her to go, and with her consent, to premises at 13, Mau Tan Street, Yuen Long where she provided services as a prostitute for a period of about 10 days. She was paid $200 per customer and part of that she willingly gave to Cheung. The girl was born on 16th February 1974. In June 1988 she was just 14 years of age.

5. The trial judge found that the Mau Tan Street premises was a vice establishment. He accepted the evidence of Tsoi that she had had intercourse with Cheung whom she knew as "Chin Chick". He further accepted that Cheung had arranged for her to go to the Mau Tan Street premises. That there she acted as a prostitute and that she gave part of her earnings to Cheung who collected her from the premises each night. There was no suggestion of any force being used upon her to make her act she did. The Applicant evidence at trial.

6. On a number of occasions in the course of his Reasons for Verdict, and this has particular relevance to the evidence given by Tsoi, the judge said he had in mind the fact that corroboration of these witnesses "these" referred to several girls who gave evidence including the girl Tsoi, was "desirable". He repeated to himself a warning of the "desirability of corroboration evidence".

7. With particular relevance to Tsoi he said that she had in considerable detail and travelling over a period of weeks with Cheung and went on:

"I accept her evidence when she describes how she had sexual intercouse with him in his home, in June 1988. having considered the desirability of corroborative evidence." (Emphasis supplied)

At the conclusion of his Reasons he used this phrase:

"I accept this evidence [that is again that of the girl] having considered the usual warning about corroboration."

8. He made no reference to what, if any, evidence at the trial constituted corroboration or if he found such to be present at all. There was in fact no corroborative evidence.

9. Miss van der Eb, who appears for the Applicant in this Court, lays emphasis on the age of the girl - not as a child of tender years giving evidence without taking the oath, the girl did - but as a matter to be borne in mind in considering her evidence and its somewhat confusing nature.

10. Her main point however is that the trial judge by being seen to use what she terms the wrong test - this stems from the use of the word "desirable" without the trial judge then going on to remind himself explicitly that he had to bear in mind the dangers of convicting on the uncorroborated evidence of a girl in a case of this nature - cannot be considered by this Court to have had, the correct test in mind when he made that reference to the "usual warning" to which we have earlier referred.

11. For this pro position there is some support in Chlu Nang Hong. v. The Public Prosecutor [1964] 1 W.L.R. at 1279, a decision of the Privy Council when considering an appeal from a Court of Appeal of the Supreme Court of the Federation of Malaya. That was a sexual case and the trial judge had in the course of his judgment said this:

"I could not but come to the conclusion that she (the complainant) was speaking the truth and that in, all material circumstances her evidence was corroborated by the facts."

12. Lord Donovan in delivering the judgment of the Board made reference to this and to the fact that the judge nowhere referred to the absence of corroboration and went on at page 1284:

"And when at the close of his judgment he announces that the circumstances afford corroboration, their Lordships cannot presume, on virtually no grounds, that he intended to say simply that the circumstances afforded consistency only. The circumstances were, indeed, consistent also with the appellant's story."

" Their Lordships do not need to emphasise that the circumstances did not afford corroboration of the complainant's allegation of no consent."

13. Lord Donovan then considered the position of a judge sitting alone, as the High Court Judge at that trial did, and said at p.1285:

"For in such a case a judge, sitting alone, should, in their Lordships' view, make it clear that he has the risk in question in his mind, but nevertheless is convinced by the evidence, even though uncorroborated, that the case against the accused established beyond any reasonable doubt. No particular form of words is necessary for this purpose: what is necessary is that the judge's mind upon the matter should be clearly revealed."

The Board took the view that the expression "that in all material circumstances her evidence was corroborated by the facts" was ambiguous and the conviction was upset.

14. This case is somewhat different. There was no corroboration. The judge clearly had in mind the desirability as opposed to the requirement for corroboration in the case of this nature. These reasons could have been more clearly expressed and eliptical reasons of this nature inevitably lead, and this is no criticism at all of Miss van der Eb, to grounds of appeal of this nature.

15. Mr. Cross has submitted that where the trial judge said he "accepted" the evidence of the girl he must be taken, as a professional judge, to have had in mind the burden of proof and indeed Miss van der Eb does not attempt, quite rightly, to suggest otherwise. Further that when he used the expression "the usual warning" he equally well, although he did not spell it out in terms, had in mind that which he should: that is the danger of convicting on the uncorroborated evidence of the girl yet still having the power to convict if he were convinced that her evidence was true.

16. We are not, bearing in mind that which Miss van der Eb has submitted to us and which has caused us some concern, persuaded that the trial judge here is seen to have led himself into error. As we have said these reasons could have been, and indeed should have been, more clearly expressed but we accept Mr. Cross's submission that the trial judge had in mind what I might term the "danger warning," and that he was prepared to accept to the required standard the evidence of the girl believing it to be true.

17. In those circumstances we would, give leave, for there were matters proper to be brought to the attention of this Court, treat the hearing of the application as the hearing of the appeal but dismiss the appeal.

18. The application in respect of sentence is not pursued.

Representation:

Miss Colette van der Eb (D.L.A.) for D6 - re: conviction

I.G. Cross, Esq. For Crown/Respondent