The Queen v. Wong Kin Fai

CACC000179/1990

BETWEEN

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Coram: Hon Sir Derek Cons, V-P, Kempster and Penlington, JJA

Date of hearing: 11 October 1990

Date of Judgment: 11 October 1990

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JUDGMENT

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Kempster, JA:

1. On 4 April last in the District Court Wong Kin-fai was convicted by HH Judge Baily on two charges. The first, charge 2, was living on the earnings of prostitution and the second, charge 6, having sexual intercourse with a girl under the age of 16 years. Against those convictions he seeks leave to appeal.

2. The only witness implicating the applicant in relation to the two charges was a girl, PW2, who at the material times was approaching the age of 15 years. She claimed to have been forced by him both into prostitution and into participating with her in her first sexual experience. In his clearly uncorrected Reasons for Verdict or Judgment, the judge said in relation to her and to two other girls in similar predicament : -

"I would not entirely discount the evidence of all three."

On its face this suggests that he placed very little credence to the evidence of any one of them. Alternatively, as Mr Cross for the Crown suggests, he may have been doing no more than answering a submission made to him by defence counsel. In any event those words fall to be considered in the light of what follows; recognising that the girl in question appears to have given some evidence inconsistent with a previous written statement she had made.

3. Judge Baily warned himself of the desirability of corroboration, having regard to the ages of these girls and to the nature of the charges, but nonetheless concluded : -

"PW2's evidence against (the applicant) is lengthy and detailed, and therefore, I am satisfied beyond a reasonable doubt, that there is sufficient evidence to warrant a conviction against (the applicant) on the second and sixth charges."

4. Of course the comment can be and is strongly made that length and detail do not necessarily import credibility. However, it is apparent from the terms of the judgment as a whole, as when the judge said that he did not accept the applicant's evidence, that he had and must have accepted the evidence of PW2. His acceptance of that uncorroborated testimony enabled him to be sure of guilt.

5. In the event we are satisfied that the judge in fact approached the evidence in the appropriate way and that the conviction is safe and satisfactory. We remain unhappy as to the manner in which the judge's mental processes were expressed. The application for leave to appeal against conviction is refused.

Representation:

Andrew Macrea (M/s Ip & willis) for applicant

I.G. Cross and W.S. Cheung for Crown/Respondent