HKSAR v. Chiu Kwok Ho

CACC000178/2003

CACC 178/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 178 OF 2003

(ON APPEAL FROM DCCC 1228/2002)

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Coram: Hon Stuart-Moore VP, Hon Stock JA, and Hon Lunn J in Court

Date of Hearing: 28 November 2003

Date of Judgment: 11 February 2004

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J U D G M E N T

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Stock JA (giving the judgment of the Court):

Introduction

1.This is an application for leave to appeal against conviction. The applicant was tried in the District Court before His Honour Judge Christie upon three charges:

(1) that on or about 13 April 2002 he took part in bringing a woman into Hong Kong for the purpose of prostitution, contrary to section 129(1) of the Crimes Ordinance, Cap. 200;

(2) that between April and May 2002 at an address in Mongkok he assisted in the management of premises kept as a vice establishment; and

(3) that between April and May 2002 he exercised control over the same woman, whose alias was Yung Yung, for the purpose of prostitution.

2.The applicant pleaded guilty to the second charge; and was acquitted of the third. So, for the purpose of this application we are concerned only with the first charge to which he pleaded not guilty but of which he was convicted on 16 April 2003. He was sentenced to a total of 26 months' imprisonment. He has abandoned his application for leave to appeal against sentence, and that application has therefore been dismissed.

The female's evidence

3.The female Yung Yung was the first of the prosecution witnesses. She said that she was in Shenzhen when the applicant offered to find her work in Hong Kong and she agreed, and he took her to a hotel there and handed her to a man whose job it was to take her, together with a number of other women, into Hong Kong in a secret compartment of a container truck. After a journey of about one hour she arrived and was taken to Portland Street where the applicant met her, and she was then taken to a place, a massage establishment called Chun Mun Lau, where she was accommodated and worked as a prostitute. Whilst thus engaged the applicant, according to her evidence, escorted her from place to place and locked her in her room when at the premises where she worked. She then moved to another establishment called the Mermaid, which the police raided on 7 May 2002 and she was sent back to Shenzhen. The applicant was arrested on 23 October 2002 and the female was brought back to Hong Kong to identify the applicant, which she did.

4.The judge concluded that her evidence was not reliable; and the remaining testimony for the prosecution, namely, the statements made by the applicant in the course of two interviews with the police, therefore constituted the testimony upon which the prosecution case ultimately depended, and upon which the conviction was founded.

The applicant's statements

5.The applicant was arrested on 23 October 2002 at 4:15 p.m. at the massage parlour. A Sergeant said to him:

"I arrest you for the offence of keeping a vice establishment because we have reason to believe that in April 2002 you made arrangement in Shenzhen of China for female ... Yung Yung to sneak into Hong Kong for prostitution."

A caution was then administered and the applicant, apart from saying that he understood, remained silent.

6.He was taken to the police station, and there at about 10:40 p.m. the record of the arrest and the words spoken were read back to the applicant, and he said that he had no alterations to make. There then took place an interview which was recorded on a video. The police said to him:

"Let's start with the first case which occurred between April and 7 May. It is a case of assisting in managing vice establishment."

He was then cautioned. He said that he was a 'keeper' in a 'finger cure' centre and he described the chores which he did there. He had been employed to work there and was paid $300 per day. He was asked a series of questions about his mobile telephone and then he was told that Yung Yung had said that he, the applicant:

'had made arrangement for her to come to Hong Kong for prostitution in Shenzhen in April. Do you have any response regarding this matter?'

He answered:

"I did not make arrangement for her to come to Hong Kong for prostitution ... My boss told me if there were any girls I could get the girls for him and I would have commission in return for each girl ... this is the first time I did it so I am not quite clear of their operation."

He admitted that he had taken the girl to a hotel in Shenzhen, had been given commission of $2,000, and told he could leave. At the hotel were two men to whom the girl was handed; and there were other girls there too. "What about the girl?" he had asked, and was told that those to whom he had delivered her would make the arrangement.

7.He was questioned extensively about how he came to meet Yung Yung and how it was that she came to Hong Kong and what role he took to that end. He said that the girl had expressed a desire to come here; she had said that 'If there was a way I could help her to come to Hong Kong and get a job', and at first he had said No. Later 'she asked me to make arrangement for her', and eventually he agreed he would see what he could do. He told his boss in Hong Kong about the matter and the boss said to him that for every girl he 'recommended to come to Hong Kong' the applicant would earn RMB2,000.

"When the girl is in the others hand, you can collect the money. The rest of it is none of your business and you don't have to ask anything. That's it."

His role was simply to seek a girl in Shenzhen and introduce her to a group of people and would be rewarded $2,000. Once that was done, his job was finished. After he had delivered the girl, his boss contacted him the same night by which time he was in Hong Kong and said that the girl was in Hong Kong.

"You come down and collect her first. Let's see whether she works in our company or other companies."

He went to Portland Street where he saw Yung Yung with another girl. He was asked to take them to Chun Mun Lau which he did. He said that he did not know how she came to Hong Kong, whether using a travel document or sneaking here. He was asked whether he knew for what purpose the girls came here and he said:

"Probably yes ... in fact I don't know much ... I probably know that they came here to earn a living with their beauty".

Later in the interview, he said that he subsequently found out that the girl was a prostitute. The interview then moved on to questions about the events at Chun Mun Lau and how the prostitution services worked and about the applicant's role at those premises.

8.There was another interview, this one on 24 October at 2:15 p.m. He was told, again by the sergeant, that the sergeant was continuing to

"make further inquiry of you into a case of assisting in managing a vice establishment ... the case occurred [between] April 2002 to 7 May 2002 and I have grounds to believe that you in April 2002 in ... Shenzhen arranged a Chinese female ... to sneak into Hong Kong for prostitution."

Again the applicant was cautioned. Again he was asked how he came to land the job as keeper at Chun Mun Lau and what was the job he performed there. Then he was asked this:

"Can you remember in which month and date you have gone to Shenzhen ... to bring Yung Yung to Hong Kong? That is the day you went to the hotel...",

and he said that it was in April that he had travelled to Shenzhen the night before with his girlfriend, and it was only once he was there that he received a call from his boss who asked him to find Yung Yung and to bring her to the hotel and that then someone would come and handle her. He later returned to Hong Kong and went back to the massage parlour and it was there that he was told that Yung Yung had arrived in Hong Kong and that he was to pick her up; and he went and saw a vehicle from which she alighted and he picked her up as well as another girl. He had been told precisely where to stand, and he had intimated to those who delivered her what colour shirt he would be wearing. He then brought the two women to Chun Mun Lau. He did not think that the girls had passports. Then there was extensive questioning about the work of the prostitutes of the parlour and the services which they provided.

The interviewing officer

9.It seems clear from the questioning of the officer who interviewed the applicant that a deliberate decision was taken to tell him that the reason for his arrest was because he was suspected of assisting in the management of a vice establishment but to say nothing about the suspected offence of assisting in the transportation of women to Hong Kong for the purpose of prostitution, in the sense of naming it as a discrete criminal offence with which he might be charged. In the course of cross-examination the sergeant said that he had had some qualms about whether he could ask questions about the trafficking offence, if we may call it that, when that offence had not been mentioned specifically as an offence to the applicant:

"I myself had such questions so I sought the instruction from my supervisor."

The answer which he was given was that he should conduct inquiries only on the question of assisting in the management of a vice establishment. His evidence was that the applicant had not been formally arrested or charged with the trafficking offence after the first interview or at the beginning of the second because his answers in the course of the first interview were considered by this witness to have been 'a bit contradictory' and that:

"As to whether after the first interview it was sufficient evidence to prosecute the Defendant, I myself had a doubt. I mean, to prosecute him for trafficking women for prostitution in Hong Kong."

The issues

10.Three issues arise in this appeal:

(1) whether the acts of the applicant were such as to constitute the offence of 'taking part in bringing a woman to Hong Kong';

(2) if so, whether the activities of the applicant in arranging for the female to be brought to Hong Kong were acts falling within the court's jurisdiction; and

(3) whether the breach or breaches of the Secretary for Security's Rules for the Questioning of Suspects as admittedly occurred when the applicant was interviewed by the police were such that the judge erred in the exercise of his discretion in deciding nonetheless to admit the interview records as evidence.

Ground 1: the actus reus

11.Section 129(1) of the Crimes Ordinance, Cap. 200 reads thus:

"(1) A person who takes part in bringing another person into, or taking another person out of, Hong Kong for the purpose of prostitution shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 10 years."

12.The judge took the view that:

"The offence is complete once the person is brought into Hong Kong for the purpose of prostitution which on the evidence in this case would be when she got down from the truck that carried her here. The conduct of the defendant in meeting her later in Mongkok is not relevant to this charge except as to his knowledge of the purpose of her coming."

So, he continued, the sole question was whether the applicant's act in Shenzhen in taking her to the hotel sufficed to constitute the offence.

13.The first ground of appeal is in the form of a straightforward assertion, that the applicant's role in the affair was simply to take Yung Yung to a hotel in Shenzhen and that she was to be taken by others to Hong Kong. Therefore, all that the applicant did was merely preparatory to the act of taking the female or females to Hong Kong, and that that did not suffice to constitute the crime.

14.The argument advanced by Mr McGowan is, with respect, one which places an unrealistic strain upon the natural meaning of the section. The section is designed to prohibit trafficking of persons to Hong Kong and is directed at participation in the act of trafficking. That participation, as in any case of joint enterprise, may take many forms. The question, as it seems to us, is whether the applicant on the established evidence, participated in a venture the objective of which, to his knowledge, was to bring the girl Yung Yung to Hong Kong. That he knew that she was to be brought for prostitution does not appear to be a live issue, and in any event was amply illustrated by the evidence. The answer in our judgment to the question whether he participated in the offence charged must be Yes. The judge seems to have concentrated solely on the act of the applicant in taking the girl to those men who were to transport her here; but the judge need not so have restricted himself for the applicant's part in advancing the objective of her passage to Hong Kong commenced well before that act. Indeed, in a real sense, he instigated the whole affair. The girl had approached him and asked if he could help her to come to Hong Kong; and that precisely is what he did. He broached the subject with his boss and was to be paid money for selecting girls to be brought, and he then transported the girl to the very people who were to take her across themselves. He knew that she was to be spirited across the border, and that in order for that to be done he had to deliver her to a place where she would be met by those who would carry through the second stage of the process of effecting her passage across. He was acting, quite deliberately so, as agent for a man who was importing prostitutes into this territory; and he took part in the process by which she was to be brought here. It is difficult then to say that he was doing other than the act proscribed.

15.One might put the matter in another way, in the form of a question which is: What was the purpose or effect of the act of the applicant in delivering the girls to the men in Shenzhen? It was surely to enable the objective of transporting the girl to Hong Kong to be achieved. That being so, it seems to us plain that he took part in that venture. As the judge correctly put it:

"The delivery was essential to the transportation of the person to the border, and the delivery was close to the transportation both in time and place."

16.We conclude therefore that the point taken must fail.

Ground 2: Jurisdiction

17.This ground is that the court below did not have jurisdiction to try this case, for the offence alleged was one that concentrated on the applicant's conduct on the Mainland, outwith the jurisdiction of the courts of Hong Kong. The judge concluded that the offence was complete once the female arrived in Hong Kong and that the act of the applicant in meeting the female was not part of the actus reus of the offence. The respondent takes issue with this finding, but we think it unnecessary to decide that.

18.The general rule is that the courts of Hong Kong will not accept jurisdiction over offences committed outside Hong Kong, save where there is clear statutory provision to the contrary in respect of a particular offence. However that statement in itself may in a particular case beg the question, namely: What is the place of the commission of the offence? It is established that:

"An offence may be committed against the criminal law of England though some of the essential elements of the offence are committed abroad; each case depends on the nature of the crime, the definition of the offence, the provisions of the statute creating it or any geographical limitation which is apparent from the nature of the crime itself or from the language of the statute creating it. If a person being outside England initiates an offence, part of the essential elements of which take effect in England, he is amenable to English jurisdiction ..." Halsbury's Laws of England Fourth Edition Vol. 11(1) para. 624.

and that is the law, too, in Hong Kong.

However, the present case is one which does not require intricate analysis of the conduct of a sole perpetrator of an offence who is situated abroad, the effect of his conduct being felt within this jurisdiction. What is overlooked by this ground of appeal is that the applicant's liability, if it exists at all, is that of a party to a joint enterprise; that the joint enterprise was to effect a crime which unquestionably was committed in Hong Kong through the efforts of a number of persons, some within the jurisdiction, others outside; and that the crime was the bringing into Hong Kong of a female for the purpose of prostitution here. As has been said:

"Where a crime is committed in England, a secondary party ... can be punished even though he was not within British territorial jurisdiction at the time when the crime was committed or when he gave assistance ... This is an application of the principle that secondary parties are guilty not of self subsisting crimes on their own account but of participation in a crime committed by another." per Professor Glanville Williams (1965) 31 LQR 518, 530, cited with approval in R v Robert Millar Ltd [1970] 2 QB 54, 73.

19.What has happened in the present case is that there was but one offence, not committed as a discrete offence by the applicant on the Mainland, but as party to a crime committed within this jurisdiction. He is therefore in the same position as the principal offenders and liable to be tried in this jurisdiction. See too R v Wall [1974] 1 WLR 930.

Grounds 3 and 4: the Rules

20.Rule II of the Rules and Directions for the Questioning of Suspects and the Taking of Statements, issued by the Secretary for Security, provides as follows:

"As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions or further questions relating to that offence."

21.The contention advanced in the court below and upon this appeal is that there was a breach of the Rules in that cautions were administered in relation to the offence of managing a vice establishment but not in relation to the allegation that he had made arrangement for Yung Yung to come to Hong Kong. Nor by the time of the second interview, the interview on 24 October, had the applicant been charged or arrested for the offence which became Charge 1, and it is said that the judge, although aware of the breach of the Rules, wrongly decided not to exercise his discretion to exclude the statement.

22.In his Reasons for Verdict the judge addressed at some length the question of the breach of the Rules. He said that in relation to the first interview, the one on 23 October, there was a breach of the Rules in that the applicant was cautioned only in relation to the offence of managing a vice establishment, and not in relation to the more serious suggested offence of taking part in bringing Yung Yung into Hong Kong for the purpose of prostitution, but that in relation to the second statement or interview, that on 24 October, there was no such breach because a reference to the more serious conduct 'was included in the caution administered to him'.

23.The judge acknowledged that the maximum penalty for the section 129 offence was greater than that for the vice establishment offence, and held that the failure before the first interview to administer the caution directed at the Charge 1 offence constituted a breach of the Rules. He noted next that:

"14. By the time he came to be cautioned again for P5 the next day, a reference to that conduct was included in the caution administered to him and I found that there was no breach in respect of P5."

What he then said was this:

"15. I considered whether the discretion should be exercised to exclude P4 (or even, for that matter, P5) in view of the breach in respect of the first interview. Poon Chi-kwong v R, HKLR 1968 at 345 is authority against that. It was held (p. 357) that it was permissible under the relevant rule to question a defendant in custody after he had been cautioned for offences other than the one for which he was in custody.

16. However, that case was decided under the old Rules, and the Rule II of the new Rules, in force since 1992, is arguably different in that it is offence-specific so far as cautions are concerned. I have found only one authority in which the same point has been raised under the current Rules. In HKSAR v Chan Ka-chun CACC 42/99 the accused had been cautioned for a rape but was then questioned about another rape, robbery and murder. The Court of Appeal, in effect, applied the same reasoning as in Poon Chi-kwong and emphasised that the discretion should rarely be exercised to exclude voluntary statements (p. 5 of the judgment).

17. That case was decided before R v Kirk 1 WLR 2000 at 567. There the accused was cautioned for theft but not for a homicide arising out of the same incident. The Court of Appeal held that the relevant discretion, contained in section 78 of the Police & Criminal Evidence Act, should have been exercised in favour of the accused. However, as counsel for the prosecution points out, the regime under that Act is different from the system in Hong Kong, in particular with reference to the right to obtain on-the-spot legal advice after a caution is administered. The Court of Appeal also (p. 572) relied on Article 5(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms which has the effect of enshrining, as a right of the accused, that which is only recommended in PACE as a code of practice for the taking of statements: to be informed of the reason of the arrest and of the charge. Finally, the case is to be distinguished because that accused showed by his conduct that he would have exercised his right of silence had he been properly cautioned. In this case, there is no such evidence. The defendant (as I have said) gave evidence on the special issue. He did not say that the administration of a proper caution would have made a difference.

18. Those were the reasons why I did not exercise my discretion to exclude evidence of the records of the two interviews, and I admitted P4 and P5 as evidence." (Tr pp 11-12).

24.For the reasons to which we shall shortly turn, it is not necessary for present purposes to analyse the judge's suggestion that on the issues in this case the regime under the Police & Criminal Evidence Act is different from the system in Hong Kong 'in particular with reference to the right to obtain on-the-spot legal advice after a caution is administered'. However, we would not wish to encourage the notion that 'the system in Hong Kong' places less importance on the right to legal advice or to the communication of that right to a suspect. The Secretary for Security's Rules themselves begin with a Note which states that they do not affect the principle 'that every person at any stage of an investigation should be able to communicate with a solicitor or barrister', and contain, by Direction 8, requirements about access to legal advice. These rights are conferred not by the Rules but by the common law, of which the Rules are merely reflective.

25.Furthermore, the judge's reference to article 5(2) of the European Convention is, with respect, a little obscure in its intent. Article 5(2) of the European Convention, which was not at the date of Kirk reflected in English domestic legislation, is in almost precisely the same terms as article 5(2) of the Hong Kong Bill of Rights Ordinance, Cap. 383, which is itself an incorporation of article 8 of the International Convenant on Civil and Political Rights, enshrined in terms by article 39 of the Basic Law. Article 5(2) of the Bill of Rights Ordinance reads as follows:

"Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him."

If the judge was, by his comments, suggesting that article 5(2) of the European Convention had no equivalent applicable to Hong Kong, and that Kirk could be distinguished for that further reason, then he was in error. See also articles 35 and 87 of the Basic Law.

26.The fundamental rule, however, is that once voluntariness is established, a statement against interest is admissible but the court retains a discretion not to admit the statement where to do so would prejudice the accused's right to a fair trial. One can readily envisage circumstances where the failure to draw the attention of a suspect to the true nature of the investigation, and where effective denial of timely legal advice, would have such a result. This, it seems to us, was the key issue as to admission of the statement in this case and one which the trial judge addressed, in effect, when analysing the question whether the administration of a caution directed specifically at a section 129 offence would have made any difference to the course adopted by the applicant.

27.The applicant was told in the course of the first interview that it was alleged that he had "made arrangement for [Yung Yung] to come to Hong Kong for prostitution". When the second interview commenced, the interviewing officer said this:

"Now, I continue ... begin to make further enquiry of you to investigate a case of 'Assisting in managing a vice establishment'. ... the case ... occurred in the period from April 2002 to 7th day of May, and I have grounds to believe that you, in April 2002, in ... Mainland - Shenzhen, arranged a Chinese female, ... whose name was KAN Siu-ping, alias Yung Yung, to sneak in Hong Kong ... for prostitution.

Now, I am having some questions for you ... to clarify, last time you - that is at the night of 23rd day of October, 2002, when I interviewed you - recorded ... interviewed you ... you said something, I want to clarify it with you.

Then - but I remind you that you are not obliged to say anything, unless you wish to do so, but whatever you say will be recorded and may be given in evidence. Do you understand?"

Immediately thereafter, the officer asked the applicant if he wanted a lawyer and the applicant said that there was no need. He could have been under no misapprehension but that he was suspected of illicit conduct by arranging a prostitute to "sneak into" Hong Kong, yet he chose, after caution, and after a reminder of his rights to legal advice, to engage in the interview and to answer such questions as were put to him. It is important to note in this case, as the judge noted, that although the applicant gave evidence on the special issue, he never suggested that but for the breach of the Rules in relation to the first interview he would not, or might not, have answered questions; and would or might have decided to avail himself of legal advice. In all the circumstances, one is left with a bare breach of the Rules in relation to the first interview and we cannot properly say that there was sufficient ground for the exclusion of the statements, or that in the event the judge exercised his discretion wrongly.

Conclusion

28.The judge's treatment of Kirk is such that we consider this a case in which it is appropriate to grant leave to appeal against conviction but, treating the hearing of the application as the appeal, and for the reasons which we have given, the appeal against conviction is dismissed.

Representation:

Mr Kevin Zervos, SC, SADPP, of the Department of Justice, for the Respondent

Mr James H M McGowan, assigned by the Legal Aid Department, for the Applicant