HKSAR v. Fung Ka Chun and Others

DCCC 199/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 199 OF 2016

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REASONS FOR VERDICT

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Introduction

1.D1 faces one charge of living on earnings of prostitution of others, contrary to section 137(1) of the Crimes Ordinance, Cap 200.  (Charge 1)

2.D2 and D3 face one charge each of aiding, abetting, counselling and procuring D1 to commit Charge 1, contrary also to s 89 of the Criminal Procedure Ordinance, Cap 221.  (Charges 2 and 3 respectively)

3.All of the defendants have pleaded not guilty.  The whole of the prosecution evidence is admitted under s 65C of the Criminal Procedure Ordinance.  None of the defendants elected to give or call any evidence. Therefore, this is effectively a trial on paper only.

4.It is contended by the defence is that the activity of D1 is not illegal and therefore D2 and D3 cannot be found guilty for assisting him in what he did.  Thus, the major issue for the court is whether what D1 did amount to the offence of “living on the earnings of prostitution of others” and if so, whether D2 and D3 had each knowingly assisted D1 in that offence.

Relevant legal principles

5.I bear in mind that the burden is on the prosecution to prove their case beyond reasonable doubt.  Moreover, the case against each of the defendants is to be considered independently and separately.  The defendants are not required to prove anything.  In the present case, none of the defendants chose to give or call any evidence.  This is their right and no adverse inference would be drawn because of the exercise of this right:  Lee Fuk Hing v HKSAR.[1]  

6.Insofar as the prosecution relies on any inferences to support the charges, such inferences are not to be drawn unless they are the only reasonable interferences from the direct facts proved: Kwan Ping Bong & Another v R.[2]  On the other hand, as McHugh J explained in Shepherd v R,[3] if an inference of guilt is open on the evidence, the question for the jury is whether the inference has been proved beyond reasonable doubt - not whether any particular act has been proved beyond reasonable doubt.  The cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance.  In a particular case, an inference of guilt beyond reasonable doubt may not be able to be drawn unless each fact relied on to found the inference is established beyond reasonable doubt.  This is likely to be the case where the incriminating facts relied on to establish the inference are few in number.  But the more facts that are relied on to found the inference of guilt, the less likely it is that each or any fact will have to be proved beyond reasonable doubt to establish guilt beyond reasonable doubt.  Consequently, even when guilt beyond reasonable doubt cannot be inferred unless certain facts are proved, it may still be open to infer guilt beyond reasonable doubt even though each fact is not proved to that standard.  See also HKSAR v Au Hau Chung.[4]

7.The defendants had each made a reply under caution and also given a cautioned statement or a cautioned video-recorded interview,[5] all of which have been adduced by way of admitted facts.[6]  What one defendant said under caution is not evidence against the others and that the court would not compare out-of-court statements given by different defendants to determine if they are true: see Wong Wai Man & Ors v HKSAR;[7] and also generally Criminal Evidence in Hong Kong, by Bruce & McCoy, at V[1055]-[1100].

8.The reply given by the defendants under their respective caution and the answers contained in their respective cautioned statement and video-recorded interview are “mixed statements”: see HKSAR v Yuen Man Tung.[8] As such, both the inculpatory and exculpatory parts in them are evidence for the purpose of determining where the truth lies.  It is trite law, however, that the court, as the tribunal of fact, is entitled to attach different weights to different parts of a defendant’s out of court statements: see generally Criminal Evidence in Hong Kong, ante, at V[1203]-[1250].

9.It is admitted that each of the defendants has a clear record.  Although the defendants have elected not to give evidence, they seek to rely on their respective out of court statements given under caution.  Therefore, I give myself the good character direction in favour of each of them in relation to both propensity and credibility: Tang Siu Man v HKSAR (No 2) (1997-1998) 1 HKCFAR 107.

The prosecution case

10.The case is about a forum under the website of www.hkbigman.net (“hkbigman”) known as the “Adult Forum”. There is no dispute that the website was opened and administered by D1.

11.It is an admitted fact that hkbigman was an online social platform offering a wide range of information, including news, finance, fashion, health tip, etc to its members.  Among other things, the Adult Forum allowed members to have discussions and sharing among themselves and to date female members.

Female members

12.From the information published in the Adult Forum (and there is no dispute about it), female membership of the forum was free of charge.[9] However, there were the following requirements for a female who wanted to join as member:[10]

(1) she may not be a member of a prostitution syndicate; and

(2) she must be aged 26 or below, not ugly and with curly figures.

13.Besides, the website said that female members were required to submit personal details of their age, height, measurements and contact details.  They were also required to provide:-[11]

(a) an “accreditation photo” which should be a half length photo. It was said that the photo would be used for “accreditation” only, that is to say for certain designated VIP members to verify that the female concerned was in fact that the one shown in the photo. The designated VIP members would then write reports for her.[12] It was said that “accreditation” would boost up confidence in the female and reduce her risk of getting “stood up”;[13] and

(b) a “reference photo” or portrait which would be posted on the forum for VIPs to view. The use of a portrait in place of a “reference photo” was optional for those who would like to reduce the risk of their identity being exposed.[14] It was said, however, that it would be best for a female member to use a real-looking photo rather than a portrait. Alternatively, if the female member was not confident about her look, she may provide a face-pixellated photo showing her figure to be put on the list.[15]

14.It was provided that after a female had submitted her application, the moderator or a designated VIP would ask to meet with her in person to confirm that she was not using a “fake” photo and then she could be admitted for “accredited” female membership.[16]

15.The website provided that there were 3 levels of female members.  The differentiation was said to be based on age, appearance and exclusivity:-[17]

(a) girls on Level 1 should be aged between 18 and 26 whereas those on Level 2 and Level 3 should be aged under 23;

(b) girls on Level 2 and 3 should have outstanding appearance;

(c) girls on Level 1 may post threads anywhere and make their contact details public. Those on Level 2 may also post threads but may not publish their contact details and have to be contacted through the system. Those on Level 3 were the most exclusive in that they may not post any threads at all; and

(d) it was said that girls on Level 1 may have most extensive dating opportunities. It was said that girls on Level 2 may control the number of people in possession of their contact details and hence significantly improve the quality of dates. As regards girls on Level 3, it was said that only the wealthiest Prestige VIPs would be able to date them, that all their information would be kept confidential and that they were the safest.[18]

16.It was said that female members were generally free to decide their levels.  However, it was said that the “Committee” had the discretion to make replacements to the Level 2 and Level 3 lists in case the numbers of applicants exceeded the quota.[19]

Male members

17.As regards male members of the Adult Forum, the website said (and there is no dispute about it) that they were divided into Ordinary members, VIP and Prestige VIP.[20] VIP was further divided into New VIP and Accredited VIP, the latter were VIPs who had been endorsed by two accredited female members.[21]  Ordinary membership was free of charge.  VIP membership was charged an annual fee of $550 for the first year and reduced annual fees for the second and subsequent years.  Prestige VIP membership only required a one-off fee of $8,000.  Besides, there were gold coins for male members to purchase in order they may view information of and contact female members.  Fifty gold coins were sold for $50, 100 gold coins for $100, 200 gold coins for $200 and 500 gold coins for $500.  Payment could be made via PayPal or by depositing money into an HSBC bank account.[22] 

18.It was said (and there is no dispute about it) that different classes of male members would have different levels of right.  The major differences were said to be as follows:-[23]

(a) for ordinary members, they could view information of girls on Level 1 by use of gold coins. They could also view basic information of girls on Level 2 (but without photos). Besides, they could request to meet girls on Level 2 by use of 200 gold coins. However, they were unable to view information of girls on Level 3 at all;

(b) for New VIP members, they could view information of girls on Level 1 girls free of charge. They were required to pay 100 gold coins for making meeting requests with girls on Level 2. Otherwise, their viewing rights were similar to ordinary members;

(c) for Accredited VIP members, they rights were similar to those of New VIP members, but they could also view photos of Level 2 girls; and

(d) for Prestige VIP members, they could view information (including photos) of all levels of girls and contact them without spending any gold coins.

Information about female members

19.It is pertinent to note, from what was said in the website, that only female members were required to provide personal data about their age, height and measurements.  They were even asked to provide photos or portraits for posting.  However, there were no such requirements for male members.

20.It is also pertinent to note that the design of the Adult Forum was such that it was for male members to view information about female members, make a request for dating and wait for reply.  The design of the forum did not cater for the other way round.  Male members may even post comments on individual female members.

21.Regarding the descriptions of female members given in the Adult Forum, the contents of the “List of Level 1 accredited female members”[24] and the “List of Level 3 accredited female members”[25] adduced by admitted facts are telling.  I note that female members were not required to provide and none of those on the lists had provided any information like education, background, work, hobby and interests which would be pertinent if they were genuinely looking for people to make friends with.  Instead, the lists contained photos of females, many of them dressed in sexy clothing.  Moreover, many females on those lists had descriptions which were explicitly sexual.  For example, in relation to “sika” on Level 1, the following was given:-

Age:	19
Height:	154
Weight:	44.2 kg
Measurements:	C34 24 35
Time:	3 pm - 9:30 pm
Location:	Yau Ma Tei, Mongkok, Prince Edward
Price:	800/1/Q/1hr 1500/2Q/2hr 1200/1Q/2hr + 100 door-to-door
	service including bath, wet kiss, ml, bj, finger penetration
	no cum-on-face, semen swallowing, ejaculation in mouth, overnight, backdoor.

For some of the females on the list, their descriptions were much simpler but still explicit. Take the example of “jolie9394”:-

1500 [1 hour once] 2000 [1 hour unlimited]

22.As regards females listed as Level 3, the descriptions given are not dissimilar to those on Level 1, although some of them appear to have offered themselves for “monthly hire” (包月) or “long-term relationship/monthly hire” (長期關係/包月). Examples include “mikasiu1992” and “mandy.a_a”.[26]

23.For reasons unknown, the prosecution has not produced any list for Level 2 female members.  There is, however, a website page from hkbigman showing information of a Level 2 female member known as “Momoko520” of whom the following description was given:-[27]

1200/1Q1HR 1800/2Q2HRs 36c-28-38

Evidence of undercover officers

24.Two undercover woman police officers registered themselves as female members of the Adult Forum, one of them (PW1) used the pseudonym “kaykaybb” and the other (PW2) “ceciho1209”.  Their evidence is covered by admitted facts:-

(a) In the case of PW1, [28] on 1 August 2014 after her registration as a female member, she received a WeChat message from “Mo Ngo” discussing with her about her “accreditation”. “Mo Ngo” said he would ask VIP to help her with “accreditation”.[29] On 4 August 2014, in the VIP Secret Information Group of the Adult Forum, “Mo Ngo” asked people to assist in writing a report for PW1.[30] There is evidence[31] (and there is no dispute about it) that “Mo Ngo” was in fact the online name used by D1. Several people responded to D1’s request. Then on 11 August 2014, someone on WeChat with the ID “trymecc” seeking information from PW1 queried about her “Plan” and personal body measurements and sexual offers. Later that day, PW met “trymecc” at Langham Place in Mongkok. There were conversations on sexual practices and “trymecc” explained to PW1 the meaning of “accreditation”. He further mentioned that some of the rich VIPs would pay as much as $6,000 with accredited female members and that her charge should be $1,500 per “Q”, the then prevailing fees of many people. The male then told PW1 his personal sexual preferences and suggested that they go to the nearby Hotel Victoria, at which time PW1 made an excuse and left.

(b) In the case of PW2,[32] she registered as a female member of the Adult Forum on 18 August 2014. On the following day, a number of individuals, including “Mo Ngo” (D1), appeared on her WeChat page asking to be friends. Also, one “Alfred Chen” made contact and talked to PW2 about “accreditation”. Later, there were WeChat messages from one “Denis Ng” asking PW2 for her price and he suggested $1,500 if PW2 had not been “accredited”. Afterwards, “Denis Ng” invited PW2 to go over to Hotel Victoria for a “try”, but PW2 declined.[33] That night, D1 sent a message to PW2 and asked whether any VIP had made an appointment and made a report for her.[34] On 26 August 2014, PW2 was contacted by one “Ah Man” and was told that her post on the website had been deleted. PW2 checked and found that that was in fact the case.

25.Two undercover police officers registered themselves as members of the Adult Forum, one of them (PW3) used the pseudonym “Kevin Leung” and the other (PW4) “sumtree”.  Their evidence is also covered by admitted facts:-

(a) In PW3’s case,[35] on 21 August 2014 he deposited $1,000 into D1’s HSBC account,[36] of which $550 was for registering as a VIP member and the remaining $450 was for the purchase of additional gold coins so that he could get into the “Dating Zone”.[37] On the following day, he logged in the website and found that he was already a VIP member and had acquired gold coins. He then entered the “Dating Zone” which contained full information from a female member, “y8818y”, on sexual practices on offer, prices for quantity and duration, extra services, use of sex toys and travel expenses. On 25 August 2014, PW3 met “y8818y” at Tsimshatsui and she took him over to Golden Sands Hotel in Chatham Road. PW3 made an excuse to leave and she asked for $200 travel expenses for which sum he afterwards deposited into an account provided by her.

(b) In PW4’s case,[38] he registered as an ordinary member on 4 February 2014. Then, on 24 June 2014 he deposited $550 into D1’s HSBC bank account to become a VIP member.[39] On 4 August 2014, he received a posting from “Mo Ngo” (D1) asking VIP members to help in PW1’s accreditation.[40] On 18 August 2014, PW4 deposited $400 into D1’s HSBC bank account.[41] On 26 August 2014, he spent of his 10 gold coins trying to date a Level 2 female member “Momoko” on the “Dating and Social Networking Page” of hkbigman.[42] On 15 September 2014, PW4 sent an e-mail enquiry to “Mo Ngo” (D1) and asked for reduced price to upgrade to Prestige VIP.[43] A reply for reduction to $7,500 was received the following day.[44] PW4 deposited $7,500 into D1’s HSBC bank account[45] and on the following day he was given full access to all levels of female members plus means to contact them directly.[46]

26.Concerning the aforesaid Level 2 female member “Momoko” which PW4 sought to contact on 26 August 2014, I note that she had online name “Momoko520”. There are the following admitted facts which, I am sure and I so find, are referring to the same person:-

(a) On 27 August 2014, police officer (PW22) used the identity of PW3 (Kevin Leung) and received from “Momoko” a message with the price and the different kinds of sexual services offered. When they met, he told the woman that she was not fit for him. She asked for travel expenses of $100 which he gave her.[47]

(b) Also on 27 August 2014, another police officer (PW7) used online name of Nelsoncheung0721 and added “creamyxpink” on his WeChat account. On the same day, he received from Level 2 girl @momoko520 WeChat message with explicit sexual details. Afterwards, on 12 September 2014, after having sexual details from “creamyxpink”, arrangement was made for PW7 to meet her at Golden Era Plaza in Mongkok. At the meeting, PW7 verbally asked for details. However, “creamyxpink” showed him the details on her mobile phone and said that no discussion about price should be held. Then she left, saying that she would not go ahead.[48]

Evidence of male members

27.By admitted facts, it is agreed that Wong Chin Hang (PW15) was registered as an ordinary member by depositing several hundred dollars into D1’s HSBC bank account.  He received an acknowledgment from “Mo Ngo” by email.  On 25 May 2014, having bargained down the price from $8,000 to $7,500, PW15 deposited the latter sum into the same bank account and became a Prestige VIP member.  Afterwards, he met accredited female members through WeChat and engaged in several sexual trades for payment with 3 of those.[49]

28.Also by admitted facts, it is agreed that Lee Wai Pin (PW17) registered as an ordinary member in around September 2012.  In around April 2013, he deposited $380 into D1’s HSBC bank account to become a VIP member.[50] In May 2013, he paid $800 as renewal fee.[51]  He had sex trade with 3 female members.[52]

Transactions in D1’s bank account

29.P21 is a banker affirmation showing transactions in D1’s aforesaid HSBC bank account.   The bank records show that there had been numerous and frequent deposits, each of a few hundred dollars, into that bank account.  Moreover, the balance in that account built up rapidly during the currency of Charge 1 from $184,549 on 1 September 2012 to $1,245,638 on 2 May 2014.  After a withdrawal of $1 million on that day leaving $245,638 in the account, then the balance bounced back to $611,297 on 14 January 2015.  Of course, apart from the few deposits made by the undercover police officers, one cannot tell, simply by looking at the bank entries alone, what the other deposits were about. However, the amounts and pattern of those deposits are consistent with the prosecution case that many of them were payments from male members.

No case submission

30.There were submissions of no-case made on behalf of the defendants at half time.  Those submissions were not aimed at the quality of the evidence, as the whole of the prosecution evidence was agreed.  In fact, the facts are largely not in dispute.  The no-case submissions were aimed at the law and in particular whether D1’s income from hkbigman was “earnings of prosecution”, there being no dispute that D1 had obtained income from the Adult Forum in the form of membership fees from and gold coins.  The defence emphasized the following points:-

(i) D1’s earnings came not from female members but from male members only;

(ii) the payments made by male members were not for sex but for browsing female information and making request to meet through the system;

(iii) D1 did no introduction between male and female members and he made no arrangement for them to meet; and

(iv) D1 was not concerned whether sexual transaction would occur and he had no control over female members.

31.Reliance was placed on R v Ansell[53] for the proposition that income derived from mere provision of information of prostitutes to customers is not “earnings of prostitution”.  In the case of D2 and D3, emphasis was also made that they had not obtained any financial benefits for any assistance that they may have given to D1.

32.Having heard submissions from counsel, I ruled that the defendants had a case to answer in respect of the charges they faced and said that reasons would be given, if and when necessary.  This I now do.

Meaning of “earnings of prostitution”

33.I do not accept the defence submission that D1’s income from hkbigman is in law not capable of amounting to “earnings of prostitution” of others.

34.The essence of prostitution is the offer of sexual services for reward and sexual services in this context are not limited to sexual intercourse: see R v De Munck [54] as applied in R v McFarlane.[55] Moreover, even though some of the female members also offered for reward additional services like bath, wet kiss and “bj” (which, I find, can only mean “blow job”), they are still acting as prostitutes: see R v Webb.[56]

35.For the purpose of Charge 1, whilst a court may in some cases look for some form of control as in Ansell, this is not an element of the offence.  The question of control is a matter of presumption.  Section 137(2) provides, inter alia, that a person who exercises control, direction or influence over another person’s movements in a way which shows that he or she is aiding, abetting or compelling that other person’s prostitution with others, shall be presumed to be knowingly living on the earnings of prostitution, unless he or she proves the contrary.  This is made clear by Viscount Simonds, who gave the leading judgment in Shaw v DPP, [57] when his lordship said (in relation to the English equivalent of our s 137, Crimes Ordinance) that, “the second subsection is probative and explanatory of the first, but is not an exhaustive definition of it.”[58]  His lordship also said that there are other ways, “(apart from the operation of subsection (2)) a person may fairly be said to be living in whole or in part on the earnings of prostitution”.[59]  See also R v Farrugia,[60] where the court explained that all the court in Ansell was saying is that where there is direction, influence or control, a jury could infer that money received from an arrangement under which prostitution was to take place was the earnings of prostitution.[61]  In other words, “direction, influence and control” is only a piece of evidence, rather than an element of offence, the absence of which is not necessarily fatal to the prosecution.

36.In Shaw, the appellant, as part of his business, published a book containing the names, addresses, and telephone numbers of prostitutes with photographs of nude female figures, and in some cases details of willingness to indulge in various sexual services. The appellant received fees from the prostitutes for this service. The House of Lords, holding that the appellant knowingly lived in part on the earnings of prostitution, said that a person might fairly be said to be living wholly or in part on the earnings of prostitution if he was paid by prostitutes for goods or services supplied by him to them for the purpose of their prostitution which he would not supply but for the fact that they were prostitutes.  Viscount Simonds, whose judgment Lord Tucker, Lord Morris and Lord Hodson agreed, pointed out that a person does not necessarily escape from the English equivalent of our s 137, Crimes Ordinance by receiving payment for the goods or services that he supplies to a prostitute.  His lordship drew a distinction with services which could be supplied to a woman whether a prostitute or not and said,[62]

“But a case which is beyond all doubt is one where the service is of its nature referable to prostitution and to 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.

… Thus a man who advertises prostitutes and receives payment from them for doing so embarks with them on a joint venture the object of which is that they may earn money by prostitution and in turn pay him for his services. No doubt, all that he is paid is not profit, for he has the expenses of publishing. But his net reward is the direct and intended result of their prostitution. If he had no other means of livelihood it would be truly said that he lived on their earnings: if he had other means, he would be doing so in part.” (Emphasis supplied)

37.Lord Reid, whilst agreeing with the decision of the other Law Lords that the appellant knowingly lived in part on the earnings of prostitution, was unable to concur with the reasons and expressed his own view.  His lordship said,[63]

“ ‘Living on’ normally, I think, connotes living parasitically.”

38.Another advertisement case is that of R v Howard[64] where the appellant produced cards and adhesive stickers to be used by prostitutes to advertise their services and their telephone numbers.  The appellant was paid by the prostitutes for the provision of the cards and adhesive stickers knowing they were to be used by the prostitutes to obtain clients and knowing that the payment he received came from the earnings of the prostitution.  Lord Lane CJ, in dismissing the appeal against conviction, cited with approval the judgment of Viscount Simonds in Shaw stating that there was no proper distinction between the example given by Viscount Simonds of the person who is paid by a prostitute for advertisement of her readiness to prostitute herself and the facts of the case before the court.[65] 

39.InR v Stewart,[66]a case concerning the letting of premises, Mustill LJ giving the judgment of the court said,[67]

“According to the literal meaning of the section any person who supplies goods or services to a prostitute is in one sense living off the earnings of prostitution: for in part he earns his livelihood from payments which the woman would not be able to make but for her trade. This cannot be the right view. There has to be a closer connection between the receipt of money and the trade before the recipient commits an offence. We doubt whether it is possible to devise a definition of the type and closeness of the necessary connection which will deal with all the circumstances which may arise; and, indeed, it is dangerous to treat word or phrases from judgments delivered in relation to one set of facts, as if they provided a statutory gloss which can be reliably applied to facts of a quite different nature.” (Emphasis supplied)

Mustill LJ took the word “parasite” in Lord Reid’s judgment in Shaw as a good starting point. His lordship then said,[68]

“… a good working test, sufficient to deal with many cases, is whether the fact of supply means that the supplier and the prostitute were engaged in the business of prostitution together: and the fact of supply will include the scale of supply, the price charged and the nature of the goods or services. It will be impossible to say in advance that certain categories of supplier must necessarily fall outside the section, any more than that other categories must be within it, but the idea of participation in the prostitute’s business will enable the jury to distinguish readily between (say) the supplier of groceries on one hand and the publisher of prostitutes’ advertisements on the other.”

40.In R v Farrugia,[69] over a period of time prostitutes assembled nightly at an escort agency waiting for assignments.  In attendance were a number of mini-cab drivers waiting to take the prostitutes to their customers.  A driver would then be asked to take the girl in question to a hotel, introduce her to the agency’s customer, collect from the customer the agency’s fee plus the cab fare and return to the agency where the fee would be handed over.  The cab drivers kept the cab fee for themselves.  There was no evidence that the girls paid to the agency or the cab drivers any part of the fee they got from their customers for their services, if any, which they performed for them.  The Court of Appeal held that the appellants (one who ran the business, one who assisted in running the business and two cab drivers) were doing what they did for the purpose of gain, and what they did encouraged prostitution.  Specifically with regards to the cab drivers, the court said that they would not have been plying for hire where they did, and as regularly as they did, had it not been to their advantage to drive prostitutes to their customers.[70]  In relation to all of the defendants, the court said,

“All the appellants must have known what the girls were intending to do. What they got from introducing the girls to their customers came from the intended prostitution and can be properly regarded as the earnings of prostitution.” [71] (Emphasis supplied)

41.Based on the case authorities above, the meaning of “earnings of prostitution” is not to be interpreted as being limited to the earnings of the prostitute only.  Where the money received by an accused is referrable to and closely connected with prostitution or intended prostitution, this too, in my view, amounts to earnings of prostitution. 

42.In my view, a website intended it to be used by prostitutes to facilitate their sex trade is no different from a magazine intended to be used for the same purpose.  Besides, in the present case membership and gold coins enabled male members not only to browse information of female members, but also to make a request for meeting.  Judging from the information of female members provided in hkbigman, in the absence of evidence to the contrary, a compelling inference could be drawn that the reason why a female member would meet a male member was for her to engage in “compensated dating”, which is in fact a form of prosecution.  That there may have been other services available on the website (as there was in the magazine in Shaw), I do not think, is of any importance.  Furthermore, in my view it matters not that the accused was not paid by the prostitutes directly. 

43.Having discussed the law as above, for the purpose of the no-case submission I am of the view that the money D1 obtained from male members of hkbigman is at the very least capable of being “earnings of prostitution” of others.  I now turn to the evaluation of the prosecution evidence generally and the case against the individual defendants. 

Adult Forum

44.In the absence of evidence to the contrary, I am satisfied that the agreed evidence points compellingly to the following:-

(i) the operation of the Adult Forum, including registration of members, charging and payment of fees, accreditation of female members, different levels of female membership, different classes of male membership, browsing female information and making of request to meet by male members, was in fact as described in the rules published in P5. This is shown by the evidence of the police officers and the registered members;

(ii) even after taking into account that the lists of female members adduced were not the full lists, most (if not all) of the female members of hkbigman were in fact offering their sexual services for reward, in other words, they were engaging in prostitution, through the Adult Forum;

(iii) the Adult Forum was a platform which facilitated prostitution of its female members; and

(iv) D1 had obtained payment during the charge period (between 1 September 2012 and 14 January 2015) for male membership fees and gold coins.[72]

D1

45.There was an article displayed on hkbigman dated 25 January 2014 with the title “[Announcement] Price hike analysis and new policy roll-out”.[73] It is agreed that the one who posted it was “Mo Ngo”.[74]  There is no dispute and I find that “Mo Ngo” was in fact a name used by D1.  Given that it was D1 who opened hkbigman and that he was its administrator, there can be little dispute that the aforesaid article was posted by him.

46.As regards the evidential value of the aforesaid article, for avoidance of doubt I should make it clear at this juncture that it is not evidence of the truth of its contents.  However, it is evidence of the state of mind of D1.  On the other hand, as there is no evidence to show that D2 and D3 had anything to do with the article, I would not use it as evidence against D2 or D3 for any purpose. 

47.In the aforesaid article, D1 explained the policy behind hkbigman, the accreditation system and the “price hike” by some “CCs” which drove some “chings” away.  Among other things, the following was said:-

“With bigman, especially in the past six months, agent girls were almost extinguished by bigman. … I dare not say that there are no bad guys among vips, but (I) believed 90% of the female members would agree there is a distinct difference between VIPs and non-vips. With the system to support, your enthusiasm, help from good chings, the business environment in this trade is way better than it used to be. Safer, less no-show, significant drop in turnover rate. Many retired ones are taking occasional comebacks, chatting with chings. There are now on average at least 10 real ccs out on trade a day.

Because of accreditation, because agents have been wiped out, more and more big spenders are on board and have fun at ease. Previous iron price range, for example 1000-1600, 1500-plus was mostly agent. These rules have been torn down thanks to the accreditation system. Some high-quality ccs have broken off the range, could resume (the) original value.

2500, 3000, 3500 …

Some members say, do (they) worth it?

Everyone has a different answer in mind, my answer is that the price is not about her quality; it is not about worthiness; it is about whether (you) can get an appointment.

…

Some CCs specify (they) only go out once a week, if she set an ordinary price, there would be a long queue and you would not get an appointment anyway and have to wait till god-knows-when, some chings said the wait was half a year, some chings added lots of tips.

Likewise, if she didn’t set an ordinary price, it would do so long as (it) maintains one per week, so long as (it) keeps the quantity she needs, a price exceeds what you feel comfortable means you are unlikely going to make an appointment with her, a price low enough and a queue that runs long means the chance you can get an appointment with her is equally low.

So the price CCs set for themselves is not how (they) rate themselves, but honestly tell you the price to seal an appointment with her.

…

All good chings are not necessary big spenders, some good chings were gone due to the price hike, which left ccs with less possible trade, which in turn drove (them) to go on price hikes to make up for the shortfall.

There used to be many chings earning as little as 8 or 9thousand looking for ccs, and now there are less and less approaches together with a shrinking client source. At the end, this makes an ever-contracting vicious cycle.

…

… I do not mind admitting that I want to get the industry prosperous, booming. Am (I) supposed to want it shrink no CC, and men all turn to the mainland?

…

… Accreditation is the reason many CCs are about to hike up prices and meet good clients. …

I am perfectly honest, (I) want more people to be CCs, even WEN Jiabo said there was the need to study legitimating the sex trade.

Half of the Japan economy lives on adult industry. So long as (we) do not become leedeelive, (where many girls were manipulated by agents, so long as we play no part in human trafficking.

…

(I) was said to have humiliated ccs as whores, I am certain (I) have never said one word insulting ccs, even the ordinary one-woman-brothel prostitutes, even whores, have my respect. Fair trade, needs solved, contributing the society, what problem is there?

To me cc is part of the service sector, more ccs means more nerds getting consolation, as far as I am concerned, all nice ccs are angels on earth, (I) believe many vips treat ccs angels like I do.”

Judging from the context, there cannot be any doubt that “CCs” refer to female members and “chings” refer to male members.

48.In the later part of the article, D1 proposed a new “accreditation” system adding “reasonableness” of the price charged as one of the criteria. 

49.Apart from the aforesaid article, there were also Whatsapp messages between he and D3, the details of which will be discussed in due course.  It suffices for me to say that those Whatsapp messages are evidence of D1’s state of mind and knowledge.

50.P5W consists of D1’s WeChat messages with other persons.  Those WeChat messages are also evidence of D1’s state of mind and knowledge.  One of the persons who had WeChat exchanges with D1 was one “Pan C” bearing a female photo.[75]  “Pan C” said to D1 that she was from “bigman” and complained to him that she had been stood up by a guy called “kent”.  “Pan C” also asked D1 whether she could restore her “accreditation” and D1 replied, “Ok, I’ll fix it for you later.”  “Pan C” then asked whether she could be allowed to change to Level 2  and she provided her description including measurements, charges and the services she could provide including “Suck if not wearing condom.  Penetrate if wearing condom.”

51.Based on the above, despite some attempt by D1 to dress the Adult Forum up just as a dating site,[76] the aforesaid article and messages by Whatsapp and WeChat are in my view compelling evidence showing that D1 must have known that many (if not all) female members (“CCs”) were in fact engaging in the sex trade offering their services to male members (“chings”).  Not only that, it was D1’s professed purpose that the “accreditation” system should help facilitating the sex trade of “CCs” and getting rid of “agent girls” from the trade. 

D2

52.Upon his arrest, D2 admitted caution that he was “kkklam”, deputy moderator of Dating-with-Girls Report Group of hkbigman.  He had published rules of the group on the website.[77]

53.In D2’s cautioned statement (P18), he said:-

(a) in October 2013, he browsed the internet searching for information about “compensated dating” and found hkbigman. He registered as a member by depositing money into an HSBC bank account provided by “Mo Ngo”[78] and used the member name “kkklam”;[79]

(b) he knew that compensated dating girls could be found through hkbigman and those girls could be called out to provide sexual service.[80] He was given 100 gold coins when he became a VIP member. He knew that gold coins would be deducted for searching female members, but he had not used them.[81] He had read about “accreditation” of female members[82] but he had not been asked to do any accreditation;[83]

(c) in June 2014 in the VIP page, he came across a female member and he called her out. The female member told him that she was engaged in “compensated dating”. He paid her $1,500 and they had sex in an hourly hotel in Tsimshatsui. After that, he published a report on her in the VIP page to share with other members;[84]

(d) in January 2014, he saw that there was a recruitment for moderator of “Dating Girl Report Group” which was a sub-page of hkbigman. Seeing that the page was quite messy, he applied for the post, wanting to help fixing it up. He therefore sent a private message to “Mo Ngo”.[85] On 1 June 2014, he became a moderator of the group. “Mo Ngo” told him the responsibility and duties of a moderator. He formulated the rules and posted them on the page for members to follow. After his promotion to moderator, he could upgrade or downgrade the visibility of posts. He could also amend, edit, delete or close them.[86] He had exercised his right as moderator by highlighting posts of members;[87] and

(e) his role as moderator was terminated in October 2014. After that, he became an ordinary VIP member again.[88]

54.P5M is a list of administrator and moderators in which “kkklam” was listed as the moderator of “Dating Girl Report Group”.[89] P5S is the printout from “Dating Girl Report Group” in which “kkklam” was named as the moderator.[90]  These two exhibits are not evidence of the truth of their contents.  However, the fact that there were such documents displayed on hkbigman supports D2’s admissions that he had, with the permission of “Mo Ngo”, acted as moderator of “Dating Girl Report Group” of hkbigman and that he had exercised his right as moderator by posting rules and highlighting posts.  There is therefore ample support for the truth of D2’s admissions above.

55.In view of the above, in my view, there is compelling evidence that D2 knew that:-

(a) “Mo Ngo” was the administrator of hkbigman;

(b) the purpose or function of hkbigman was to facilitate its female members engaging in “compensated dating” which is in fact a form of prostitution; and

(c) one could become a VIP member by making payment to the HSBC bank account provided by “Mo Ngo” and gold coins would be required for searching information of female members.

D3

56.Upon her arrest, D3 admitted under caution that she was “Sap Sam Mui” of hkbigman.[91]

57.Afterwards, in D3’s video-recorded interview (P20A), she further admitted the following:-

(i) she had been a “CC” (“私鐘”)[92] for two years and she provided sexual services (including sexual intercourse) to others for payment;[93]

(ii) in around June 2013, she became a member of hkbigman using the name “Ah Kit”. She put up a post there stating implicitly the kind of sexual services she would provide, her charges and means of contact;[94]

(iii) she explained that the function of “accreditation” was to prove that the existence of the person and that accreditation would bring business.[95] She was an “accredited” member;[96]

(iv) the administrator of hkbigman was “Mo Ngo” whose named was “Fung Ka Chun” whom she had met several times;[97]

(v) “Mo Ngo” had asked her to induce “CCs” to hkbigman so that he could earn more gold coins;[98]

(vi) she was asked by “Mo Ngo” to be a moderator of “Social Networking Section”[99]and she used the online name “Sap Sam Mui” for that role.[100] “Mo Ngo” asked her to verify posts for him to see whether they were from “agents”.[101] If a post was from a CC, then she would let her post it. If someone requested her post to be deleted, she would delete it for her;[102] and

(vii) She believed that “Mo Ngo” probably know that she was acting as a CC on hkbigman as the website belonged to him.[103]

58.I note that D3 in her video-recorded interview said that she did not know the difference between Levels 1, 2 and 3.[104] She said that despite the request of “Mo Ngo”, she had not in fact introduced any CCs to hkbigman.[105]  She did not admit that she was the one who posted the article “[Announcement] Attention on all female members” in the “Social Networking Section”.[106]  Although she admitted that the telephone number 61335737 was hers, she did not admit the Whatsapp conversations between “Ah Kit” (using that number) and “Mo Ngo” when she was shown by interviewing police officer those conversations.[107] 

59.However, in my view there is compelling evidence to show that D3 was not telling the whole truth and was trying to down play the nature and extent of her assistance given to D1 in the operation of hkbigman during her interview. This is because the exculpatory parts in her interview are contradicted by her Whatsapp messages which are contemporaneous records of her communication with D1.  There can be no doubt that D3 in fact had extensive and frequent communication with D1.  By admitted facts, P5X consists of 169 photos of messages on Whatsapp between D1 and D3 concerning the operation of hkbigman. P5X includes D3’s messages on Whatsapp using the telephone number 6133 5737.[108] Besides, D3 also had used other telephone numbers to communicate with D1 at different stages including 9875 4777 (Kit 神婆),[109] 6156 5123 (Kit 神婆)[110] and 9885 5811 (Ah Kit 2).[111]

60.Before I go on to discuss the contents of the Whatsapp messages, I should say that although it is arguable that the Whatsapp messages are admissible to prove the extent and degree of D3’s participation in the alleged offence of D1 and the nature and extent of that alleged offence: see Vivien Fan v HKSAR,[112] the prosecution has not sought to rely on that rule and the point has not been argued by either side.  For avoidance of doubt, I have not relied on the “co-conspirator’s rule” or the truth of what was said in the Whatsapp or WeChat messages.  Rather, I am only relying on the fact that certain matters were mentioned and discussed.  The fact that certain matters were said is evidence of the respective state of mind of those engaged in the dialogue and such use does not violate the rule against hearsay: see HKSAR v Lau Shing Chung Simon.[113]

61.Based on the contents of the Whatsapp messages, I consider that there is in fact compelling evidence to show the following:-

(a) To her knowledge, D1 knew that she was a prostitute:

(i) P5X(60):

D3 told D1, “There is a change in my price” “Back to 1500” “2q 2500”[114]

(b) D3 had from time to time introduced other CCs to D1 and asked him to do certain things in relation to them. Besides, D3 was also aware that there were different levels of female members:

(i) P5X(47):	D3 said, “Also, please del the post from tungbi18. Her boyfriend saw it.”[115]
(ii) P5X(58):	D3 asked, “I have a question. Can (you) step up the privacy?” “They want to be put on the list” “However, they did not trade frequently.”
	D1 asked, “how many times per week?”
	D3 said, “It depends on the price”.
	D1 replied, “The most simply way is to put them in level 3. Only diamond VIPs now their existence. However, if they look ordinary, put them in level 2”;[116]
(iii) P5X(70):	D3 asked, “Accredit maniiicc”[117]
	D3 also said, “And (we have) a new cc called cho.cc”
	“She will not publish posts”
	“takes vip customers only”[118]
(iv) P5X(72):	D3 asked, “put cho.cc in the list.”
	“She does not want to be high-profile”[119]
	D1 replied, “I have done it for cho.cc. Now she can approve releasing her contact (by clicking into) the (section) “accredited female members only”. Problem is, she does not have any photo at this moment”[120]
	D3 replied, “Now she does”[121]
(v) P5X(83):	D3 informed, “cho.cc wants to increase it to 2000q”[122]
	“Remove maniiicc”[123]
(vi) P5X(86):	D3 said, “I patched up with maniiicc …”[124]
(vii) P5X(87):	D3 said, “Another one, mini_face. Do you have any recollection (?) (She) has worked for a long time. However, she does not trade very often now. On which level should (she) be(?)”
	“Well, one which level should she be”[125]
	D1 replied, “2 or 3, depending on whether she has access to the internet anytime”[126]
(viii) P5X(92):	D3 reminded D1, “Also mini_fff”[127]
P5X(94):	D1 replied, “mini_fff ok”
	D3 said, “put her in level 2”
	D1 said, “ok”[128]
P5X(95):	D3 sent D1 a photo of a girl and then said “Mini_fff”[129] “Use the photo above”[130]
(ix) P5X(155):	D3 asked, “accredit suico1991”
	“However, she does not wish to be put in the list”
	“Has an accreditation been done?”
	“Without accreditation, few people adds her” [131]
(x) P5X(157):	D3 asked, “Accredit Chingbb1314”[132]
(xi) P5X(160):	D3 asked D1 to change a female member back to ordinary membership because her service was bad and she was old.[133]

(c) D3 had been proactive in offering advice or help to D1 in relation to hkbigman:

(i) P5X(45):	D3 asked D1, “How about letting me be an administrator (sic, moderator?). I am free anyway”[134]
(ii) P5X(47):	D3 said, “I also want to state that it is time to enhance bm what I mean is not the system.”
	“Don’t you feel that it seems to limit itself to certain customers?”[135]
(iii) P5X(48):	D1 asked, “You are knowledgeable.
	What customer can we extend to?”
	D3 replied, “You have to give me the authorization, without which many things cannot be done”;[136]
(iv) P5X(52):	D3 said, “(I’ll) give you a piece of advice!” “Move the girls of hklovely back to bm, and re-launch a website” “Bm takes much time and efforts”;[137]
(v) P5X (77):	D3 said, “I have some girls who look relatively high-class” “But they ask a sky-high price.”
	D1 replied, “For those asking a sky-high price, put them in Level 3. If they look good, surely some people will pay. Do not under-estimate the rich.”
(vi) P5X(78):	D1 said, “Now, there are few cc in level 3, which won’t satisfy the rich.”
	D3 replied, “I see.” “Well, let me deal with it.”[138]
(vii) P5X(81):	D1 asked, “When you are free, come out to discuss the sky-high-priced girls”
	D3 replied, “ok”[139]
(viii) P5X(89):	D3 said, “and there are few clients on
	level 2” “Cho.cc has taken only one”[140]
	D1 replied, “unlikely. There shouldn’t be so few on Level 2, probably she just didn’t know how to use the system, making no one but diamond member could find her”[141]
	D3 said, “How about you teach me”
	“Mostly I am the one who deal with their stuff”[142]

(d) D3 was told that D1’s income from hkbigman would be affected by the number of VIP members. There was an incident where the personal facebooks and phone numbers of many CCs were exposed by a third party. That led to a series of Whatsapp messages between D1 and D3 as how to handle the situation:[143]

(i) P5K(115)	D1 said, “I was under great pressure and suffered a huge loss as a result of him.
	D3 asked, “What loss?
	D1 said, “Cc’s safety is compromised. The number of cc dropped, the number of VIP dropped even further because their contacts were shared.” “Should have been the best time of a year for business now in this summer holiday.”[144]

(e) It was D3 who posted the article titled “[Announcement] Attention all female members” in “Social Networking Section”.[145] That article displayed a photo and contact details of a male and alleged that the male had taken stealthie photos and videos of “ccs”. The same photo and contact details were contained in the Whatsapp message from D3 to D1: P5X(126)-(127). Preceding that, there had been discussions between them as to how to deal with the male: P5X(125)-(126).[146]

62.In view of the above, a jury would be entitled to reject what D3 said in her video-recorded interview whenever it was contradicted by what was contained in her Whatsapp messages with D1. 

63.On the other hand, in my view a jury is entitled to find that the inculpatory parts of D3 video-recorded interview are supported by her Whatsapp messages with D1 and that full weight should be attached to those parts. 

64.Having considered all the relevant evidence as a whole, in my view there is in fact compelling evidence to show that:

(a) D3 was a freelance prostitute and she used the Adult Forum of hkbigman to facilitate her sex trade;

(b) she knew that many (if not all) of female members were in fact freelance prostitutes like her and she knew that “accreditation” would help them in their sex trade;

(c) she knew that D1’s income from hkbigman depended on the number of VIP members, which in turn depended on the number and quality of female members; and

(d) during the charge period (10 June 2014 and 14 January 2015), she had assisted D1 in the operation of hkbigman by giving him advice, taking the role of moderator in the “Social Networking Section” of the Adult Forum and posting an article there and introducing females to join as members.

Conclusion on no-case submission

65.Based on the above, I consider that there is in fact more than sufficient evidence for a case to answer in respect of all the defendants.  In my assessment, the prosecution does not only have a prima facie case but a strong case against each of them.  I therefore rejected the defence submissions at half time.

Factual findings

66.As of their right, the defendants do not give or call any evidence and no adverse inference is to be drawn against them.  On the other hand, it also means that compelling inferences remain unanswered and it is not the court’s task when considering the facts put before it to imagine possible defences of which there is no evidence”:  see R v Chong Kin Cheong [147]and Li Defan & Another v HKSAR.[148]

67.Having considered submissions of counsel at closing, I am satisfied beyond reasonable doubt that:

(a) the Adult Forum was intended by D1 to be a platform which facilitated prostitution of female members and the other defendants also knew about it;

(b) at all material times, D1 had obtained income from payment for male membership and gold coins and the other defendants also knew about it;[149]

(c) as regards D2, his admissions under caution were true and should be given full weight. Moreover, he became a member of the hkbigman upon payment of membership fee. He knew that gold coins would be required for searching information of female members. Moreover, he had asked a female member out and paid her for sex. He had also (during the currency of Charge 2) assisted D1 in the operation of hkbigman by taking up and performing the role of the moderator of the “Dating Girl Report Group”;

(d) as regards D3, the inculpatory parts of her video recorded interview are true and should be given full weight. On the other hand, no weight should be given to the exculpatory parts. Moreover, D3 had (during the currency of Charge 3) assisted D1 in the operation of hkbigman by introducing girls to work as freelance prostitutes providing sexual services through the website, by giving advice to D1 as to how the website should be run and by taking up and performing the role of moderator of “Social Networking Section”. D3 knew that D1’s income from hkbigman depended on the number of VIP members, which in turn depended on the number and quality of female members; and

(e) the only reasonable inference to be drawn from all the relevant evidence is that at all material times all defendants knew that most (if not all) of the male members would spend money on membership and gold coins because they were looking for girls who would provide them with sexual services for reward. The suggestion that people may spend money just for browsing female information or calling girls out for a chat is, with due respect, unrealistic to say the least. This is so,especially in view of the descriptions of female members given in the website. As the tribunal of fact, I reject the suggestion as inherently improbable.

Charge 1

68.I have no doubt that had there been no female members offering themselves for sexual services, few people would be prepared to spend their money either on membership or gold coins.  This is supported by D1’s Whatsapp message to D3 (P5K(115), ante) that his income had been adversely affected by the dropping in number of CCs.  I have no doubt that the money that D1 had obtained from male members of hkbigman was referrable to and so closely connected with prostitution or intended prostitution of its female members that it amounts to “earnings of prostitution” of others. 

69.After taking into account all the relevant evidence against D1 as a whole, I find that he had knowingly lived at least in part on the earnings of the prostitution of others.  I find that the prosecution has established Charge 1 against D1 beyond reasonable doubt.

Charge 2

70.D2 had set rules for the “Dating Girl Report Group” and those rules aimed at enhancing the reliability of reports posted in the Group.  Among other things, D2 asked that:-

“1) All reports must be true and correct, (and) the contents (must be about) the author’s dating experiences. False reports, if found, will be deleted.

…

“7) Members are asked to give ratings in the following format below or in other ways when publishing reports:

Look: ?/10

Body: ?/10

Service: ?/10

Attitude: ?/10”

71.D2’s role as moderator also entailed highlighting reports on “performance and service” of female members for reference of other male members.  One example is the report on “Cinnamon” (P5S) the visibility of which, D2 admitted, he had enhanced.  It goes without saying that a good report would help the female member concerned to obtain business.

72.Furthermore, even though D2’s motive might have been to help fellow male members in picking the right girls for sex, I draw the inference, which I find to be irresistible, that D2 knew that what he did would also be beneficial to the business of hkbigman by building up customer trust and confidence which in turn would help “Mo Ngo” make more money.  I have considered the mens rea requirement for a secondary party as stated in HKSAR v Chu Wai San, ante.[150] I find as a fact that D2 had intentionally and deliberately assisted D1 by what doing what he did and that he had knowledge of all the essential facts which made what was done a crime. 

73.As a matter of law, that D2 might not “want” or “aim” to assist D1 does not prevent him from being liable as an accessory, as I have found that D2 had an obliged intent to assist: see Lynch v DPP for Northern Ireland;[151] and generally Smith & Hogan’s Criminal Law.[152]  Moreover, in order to establish D2’s liability of as an accessory, the prosecution is not required to prove that he also intended that D1 could in fact live (in whole or in part) on the earnings of prostitution of female members, that being a consequence of D1’s conduct: see National Coal Board v Gamble.[153]

74.Furthermore, the fact that D2 had obtained no financial gains for assisting D1 does not prevent him from attracting secondary liability for D1’s offence.  The fact that D2 did not know D1’s true name and that he had no contacts with other moderators is, in my view, irrelevant.  Also irrelevant is the fact that D2 had no control over what D1 did.  The prosecution case against D2 is one of “commission” rather than “omission” and the case of R v JF Alford Transport Ltd & Ors[154] relied upon by D2 is therefore distinguishable: see HKSAR v Chu Wai San.[155] 

75.Having considered all the relevant evidence against D2 as a whole, I find that the prosecution has established Charge 2 against him beyond reasonable doubt.

Charge 3

76.The law on liability of an accessory discussed above in relation to D2 also applies to D3. 

77.D3’s case is similar to D2’s.  However, the scope and degree of her knowledge and assistance to D1 are even greater.  I am sure and I find that D3 knew that D1’s income from hkbigman depended at least partly on the number of VIP members, which in turn depended on the number and quality of female members.  As I have said I find that D3 had introduced girls to join hkbigman as freelance prostitutes.  I draw the inference, which I find to be irresistible, that D3 knew that all the assistance she had given to D1 would help him make more money.  I find that D2 intentionally and deliberately assisted D1 by what doing what she did and that she had knowledge of all the essential facts which made what was done a crime.

78.Having considered all the relevant evidence against D3 as a whole, I find that the prosecution has established Charge 2 against her beyond reasonable doubt.

Conclusion

79.Based on the above, I am satisfied beyond reasonable doubt and I find that:-

(i) D1 is guilty of Charge 1;

(ii) D2 is guilty of Charge 2; and

(iii) D3 is guilty of Charge 3.