HKSAR v. Lee King Chau and Another

DCCC 1085/2022

[2024] HKDC 200

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1085 OF 2022

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REASONS FOR VERDICT

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The Charges

1.The present trial concerns with two defendants.

The Facts

2.D2 faces a sole charge of “tenant permitting premises to be kept as a vice establishment”, contrary to section 144(1)(a)  of the Crimes Ordinance, Cap.200 [Charge (2)].

3.The particulars of Charge (2)  alleged that D2, between 1 July 2021 and 7 January 2022, both dates inclusive, being the tenant a premises situated at 1^st Floor, No.6 Ichang Street, Tsim Sha Tsui (“the Premises”)  permitted or suffered the whole or part of the Premises to be kept as a vice establishment.

4.D3 faces one charge of “unlawful sexual intercourse with a girl under the age of 16 years”, contrary to section 124(1)  of the Crimes Ordinance, Cap.200 [Charge (3)] and an alternative charge of “indecent conduct towards a child under the age of 16” ”, contrary to section 146(1)  of the Crimes Ordinance, Cap.200 [Charge (4)].

5.The particulars of Charge (3)  alleged that on 7 January 2022 at the Premises, D3 had unlawful sexual intercourse with X, a girl of the age of 15 years.

6.D2 pleaded not guilty to Charge (2). D3 pleaded not guilty to Charge (3)  but guilty to Charge (4).

7.Prosecution continued with Charge (3)  against D3.

Admitted Facts

8.Parties had agreed, by virtue of section 65C of the Criminal Procedure Ordinance, inter alia, the following facts:-

9.The Premises was divided into 6 rooms (Rooms A to G), with a living room, a toilet, a storeroom and a balcony.

10.On 7 January 2022, upon the search by the police, a notebook (Exhibit P3)  and a box of 54 unopened condoms were found in the living room; tissue papers, disposal shorts and towels were found in the storeroom; massage oil, disposal bed covers  and disposable shorts were found in Rooms B, C, D and G; bottles of lubricant and disposable bed covers were found in the balcony.

11.On the same day, D3 and X were found inside Room D. D3’s upper body was naked whilst X’s body was wrapped by a towel only. D1 was found inside Room E. A male was found inside Room B. A 13-years-old girl was found at the balcony.

12.At around 4:44 pm, D3 was arrested by the police for “sexual intercourse with underage girl”. D3 said under caution “Before you people came in, Ah Cash gave me a hand job only. We have yet to make love.”

13.Between 5:11 pm and 5:50 pm, DPC 9881 post recorded the above admission made by D3 in a police notebook which was marked as Exhibit P4.

14.On 8 January 2022, DPC 9881 conducted a video recorded interview with D3 (“D3’s VRI”)  which was marked as Exhibit P5.

15.At around 5:08 pm, D2 was arrested by the police on Hankow Road, Tsim Sha Tsui for “keeping a vice establishment” and “causing or encouraging prostitution of girl under 16”.

16.X was born on 26 April 2006, Y was born on 22 January 2009 and Z was born on 23 November 2009.

17.In an identification parade held on 9 February 2022, D2 was positively identified by Y and Z.

18.A tenancy agreement of the Premises was entered into and signed by D2 on 5 July 2017. The tenancy term was between 1 September 2017 and 31 August 2022. The rent was HK$33,000 per month.

19.At the material times, the rent of the Premises was paid by way of a cheque drawn from D2’s bank account.

20.On 10 January 2022, D2 used the phone number 9430-1814 to call the property agent responsible for the Premises that he (D2)  would terminate the tenancy agreement of the Premises.

21.During the offence period, the electricity and the water accounts for the Premises were registered under D2’s name.

22.On 7 January 2022, the police seized a pink Samsung mobile phone from D1. In this mobile phone, there were WhatsApp messages sent on 8 December 2021 between D1 and a contact person whose name was saved as “Lo Kung”. The phone number of “Lo Kung” was 9430-1814. The content of these WhatsApp messages were produced as Exhibit P34 and P34(a). D2 had been the registered user of the mobile number 9430-1814 since 18 November 2018. As of 7 January 2022, he was still the registered user of this mobile number. On 8 February 2022, D2 provided 9430-1814 as his contact number for the personal information stated in his record of interview.

23.On 7 January 2022, the police also seized a black Samsung mobile phone from D1. There was a group called “AV Channel Spa” in the Telegram installed in this mobile phone. “AV Channel Spa” was used for advertising services in the present case. The screen captures of the content of this Telegram group were produced as Exhibit P37(1)-(2). The content of Exhibit P37(1)  were produced as Exhibit P38 and Exhibit P38(a). There was an account called “avchat1814” in “AV Channel Spa” as shown in Exhibit P38 and P38(a). The phone number for the account “avchat1814” was 6859-0590. The phone number of the black Samsung mobile phone seized from D1 on 7 January 2022 was 6859-0590. D2 had been the registered user of the phone number 6859-0590 since 11 November 2018. As of 7 January 2022, he was still the registered user of this mobile number. There was a post published on “AV Channel SPA”: ‘Yau Yau' and stunning Form 6 graduate with big eyes and long lashes. Good service is worth trying again. Everyone wants her name #cash).

24.The DNA obtained from the sperm fraction derived from the blood/seminal stain mixture on the low vaginal swabs taken from X on 8 January 2022, could have originated from D3.

25.The DNA obtained from the sperm fractions derived from the blood/seminal stain mixtures on the vulval swabs and the high vaginal swabs taken from X on 8 January 2022, was each a mixture likely to have originated from two individuals. D3 and X could be included as possible sources of this mixture.

26.The DNA obtained from the sperm fraction derived from the seminal stain on the endocervical swabs taken from X on 8 January 2022, was a mixture likely to have originated from two individuals with one of them being predominant. The major DNA source was admixed with other DNA source(s)  present in low quality which offered little information for identification purposes. The major source could have originated from D3. The DNA obtained from the non-sperm fraction of the same seminal stain could have originated from X.

27.The DNA obtained from the overall surfaces of the opened condom package seized from room D at the offence location was a mixture likely to have originated from two individuals with one of them being predominant. The major source could have been X. No human DNA was found on the inside surfaces and outside surfaces of the condom of the said opened condom package.

Prosecution Witnesses

28.A total of 5 witnesses were called by the prosecution. DPC 20190 (“PW1”). Girl X (“PW2”), Girl Y (“PW3”), Girl Z (“PW4”)  and Dr. Yeung Pak-kwan (“PW5”).

29.PW2, PW3 and PW4 all testified as immunized witnesses and their evidence in-chief were adduced by way of their respective video record interviews (“VRIs”). 

PW1 (DPC20190)

30.PW1 was the exhibit officer. He confirmed the search and seizure of various exhibits found at the Premises as per the admitted facts.

31.PW1 said that condoms were found inside in Rooms B, C , D and G (6 unopened condoms were laid on top of a table in each of Room B, C and G; 5 unopened condoms were laid on top of a table and 1 opened condom package with a condom were on the floor in Room D).

32.PW1 also said that a box of 54 unopened condoms were found on a cabinet at the corridor of the living room.

33.In cross-examination, PW1 was challenged by the defence that in his witness statement it was stated that condoms were found in Rooms A to G of the Premises whereas in his court’s testimony only Rooms B, C, D and G had condoms being found inside. To that PW1 explained that it was an omission on his part in not stating clearly in his witness statement that no condom was found inside Room A and E.

34.PW1 was also challenged by the defence regarding location where the box of 54 unopened condoms were found. To that PW1 explained by praying-in-aid the original Chinese wordings used in his witness statement which stated that this box of condoms was placed at the cabinet in the middle of the living room.

35.PW1 was also challenged by the defence that the said 1 opened condom package with a condom were not found inside Room D but planted by the police inside Room D. To that PW1 disagreed. PW1 said that the first time when he noticed such items on the floor of Room D was when he was making observation of the Premises, shortly before 1636 hours.

PW2 (X)

36.X confirmed that she had been working at the Premises in providing sexual service (though she was unclear as to the time of commencement as she mentioned two different times in her VRI, namely May 2021 and December 2021).

37.X was also not certain as to the frequency in which she provided such services at the Premises.

38.X described that the price for sexual intercourse was HK$2,500, from which she would give HK$700 as room fees; whilst the price for hand-job was HK$1,200, from which she would give HK$400 as room fees. Such rooms fees were paid to Kimmy.

39.X also recalled that there was a customer whom had received sexual services from her twice. On the first occasion it was a hand-job in which she received HK$1,200 and gave HK$400 to Kimmy. On the second occasion it was sexual intercourse in which she receivedHK$2,500 and gave HK$1,000 to Kimmy. 

40.X described that a Telegram Channel was used for the purposes of advertising the sexual services provided by the girls working at the Premises. Her name in the Telegram channel was “Cash”.

41.As to 7 January 2022, X said that she was at the Premises on that day. She was informed by Kimmy that there would be a customer coming at quarter pass three whilst another at four. The first customer arrived at around 3:18 p.m. He was D3. X used Room D to serve him. X described that D3 did not mention that he wanted to “go big” (which meant having sexual intercourse)  with X.

42.X said that after entering Room D, D3 took off his clothes. D3 told X to lie down and she complied. D3 kissed and touched X everywhere. The touching and kissing lasted for about 20 minutes. D3 then put his penis into her vagina for about 5 to 6 minutes. At the beginning, X saw D3 opening the package of a condom. D3 put on a condom. During the sexual intercourse, D3 stopped midway and asked X to turn around. X suspected that at that time D3 pulled the condom away. She felt that he did not wear a condom. After 5 to 6 minutes, X could feel a little bit of semen coming out from her. After they finished, the police broke in. X put on a towel. D3 wanted to put on his clothes and leave but failed.

43.In cross-examination, X agreed with the defence that condoms were not kept outside but would be kept in the cabinet of the living room.

44.X agreed that D2 never showed customers to the rooms, only Kimmy did that. 

45.X said that she had an impression of D3 wearing a condom, then came a short pause in the midway (during the intercourse). She then felt that D3 took the condom off. X said that she could not recall where D3 took the condom from nor who provided it to him. X said that as she is short-sighted, she did not see D3’s action in putting on the condom. X also said that she did not have recollection of D3 opened the packaging of the condom (she acknowledged that she did say so in her VRI).

46.X agreed that she masturbated D3 though she could not remember if he had ejaculated while she was performing such act.

47.X agreed with the defence that after masturbation, D3 kept on touching X’s body and kissing her.

48.X agreed when D3 ejaculated, he shot all over her body, including her private part.

49.When it was put to her that D3 did not insert his penis into her vagina, she disagreed.

50.X agreed that D3 had asked her “don’t you need to go to school?” and X replied : “finished studying”.

51.In re-examination X said that condoms would not be normally placed on top of various cabinet when the same was/were not meant to be used. They would be put inside the drawer. As to how condom(s)  were placed on 7 January 2022 she could not recall.

52.X also confirmed that D3 ejaculated inside her vagina and sexual intercourse did take place.

53.X said she had no recollection about D3 put his finger into her vagina.

PW3 (Y)

54.Y said that it was through the introduction of a friend of hers, named KK, that she began working at the Premises in providing sexual services. She said that the first time she started to provide sexual services at the Premises was in September 2021 and the last time was in December 2021.

55.Y described that a Telegram Channel was used for the purposes of advertising the sexual services provided by the girls working at the Premises. She was given the name of “Flip” in the said Telegram channel.

56.Y said that Kimmy was the person responsible for placing advertisement on Telegram. These advertisements would mention the type of sexual services (hand-job or sexual intercourse)  were available. Y was able to read such information from the company’s phone. Y described that the model of the company’s phone was blue coloured Huawei phone.

57.Y said it was also Kimmy who was responsible for bookings, collecting room fees from the girls and taking care of the Premises. After performing sexual services at the Premises, she would receive money directly from the customers. Y would then give a portion of the same to Kimmy as room fees. Y described that she would receive HK$1,500 or HK$1,600 for giving a hand-job. If the customer gives her tips, she would receive around HK$2,000. She would then pay HK$300 to HK$400 to Kimmy as room fees. Throughout the period she worked at the Premises, Y said she earned a total of around hundred odd thousand dollars. Y recalled an occasion whereby she was forced by a customer to have sexual intercourse with him. She was given HK$4,000 by the customer on that occasion and she gave HK$300 or HK$700 to Kimmy for room fees.

58.Y said that there were customers who came to the Premises for massage only.

59.As to matters concerning D2, Y confirmed that she did identify him at the identification parade. To Y he was called “Chau Gor” or “Fei Lo”. As far as she knew, D2 was Kimmy’s boyfriend. Y described that D2 came to the Premises every now and then to look for Kimmy. Y recalled seeing D2 hanging, drying and folding towels at the Premises. He also chatted with and brought foods for the girls who worked at the Premises. Y said that there were times when customers were present at the Premises as well as whilst Y was providing sexual services in one of the rooms, D2 was present at the Premises at the same time.

60.According to Y, D2 knew some of the customers who visited the Premises. She saw D2 opened the door of the Premises for some of these customers and escorted them into the rooms.

61.Y also saw Kimmy giving money to D2.

62.As far as Y knew, D2 had the Telegram group on his own phone. Y believed that D2 could also read those messages on his own phone.

63.Y was asked during her VRI as to whether D2 knew about what the girls were doing inside the rooms, to which Y replied in the affirmative. Y explained that such belief of hers was based on the fact that she had witnessed D2 looking at the company’s phone and unlocking it with the passcode which the girls also possessed.

64.Y said the last time she saw D2 was around mid-December 2021.

65.In cross-examination, Y agreed that D2 was not at the Premises every time when she was there. She also said that she was not close with D2.

66.Y also confirmed with the defence that though she saw D2 looking at the company’s phone, she did not actually see what D2 was looking at.

67.Y also amended her previous answer by saying that she did not recall whether in fact Kimmy had given money to D2.

68.Y also confirmed that she never witness D2 discussing with the customers regarding the services offered to them.

69.Y said it was D2 who gave her the name of Flip albeit she could not remember when she was told by D2 about it.

PW4 (Z)

70.It was her elder sister (Y)  who led her to work at the Premises for the provision of sexual services.

71.Z was aware of the Telegram Channel used for the purposes of advertising the sexual services provided by the girls working at the Premises. She was given the name of “Flop” in the said Telegram channel.

72.Z said D2 was Kimmy’s boyfriend. To her he was one of the host of the Premises.

73.Z witnessed D2 folding towels and tidying up the rooms at the Premises. Z said that she saw D2 inside the rooms for serving customers, once or twice occasionally. Z did not know what he was doing in the rooms. Z said that D2 would sometimes take tissue paper into the rooms. Such tissue paper were to be used by her to wipe her hands after applying oil when providing masturbation services.

74.Z said that she did chat with D2 in the past but their conversation did not touch upon customers or what happened in the rooms.

75.In all, Z said she rarely saw D2.

PW5 (Dr. Yeung Pak-kwan)

76.PW5’s witness statement was produced by virtue of section 65B of Cap.221 as Exhibit P44.

77.PW5 also testified and confirmed:-

78.He conducted a medical examination on X on 8 January 2022. Vulval swabs, high and low vaginal swabs and endocervical swabs from X were taken. A swab as depicted at p.9 (figure 6)  of P44, was used for taking these body samples. The total length of the shaft of the swab is 12.5cm. A speculum as depicted at p.8 (figure 5)  of P44 was also used for taking the high vaginal swabs and endocervical swabs from X.

79.For taking vulval swab, PW5 rolled a swab over the vulva and repeated the same with a second swab. The vulva is the outer part of the vagina. The swab did not go inside the vagina. It only came into contact with the outer part of X’s genitalia. If semen was found on the vulval swabs, it meant that the semen was found on the outer part of X’s genitalia.

80.For taking the low vagina swab, the swab was inserted into the vagina for approximately 3cm. If semen was found on the low vagina swab, it meant that semen was found at an area which was about 3cm deep in the vagina.

81.High vaginal swab was taken from the upper end of the vagina. The area for taking high vagina swab was deeper in the vagina than the low vaginal swab. A speculum was used for taking high vaginal swab for opening the vagina. The blade of the speculum, which was about 7cm, was inserted into X’s vagina. PW5 then put the swab through the blade of the speculum. The swab was inserted into the vagina for at least 7cm. The swab went beyond the tip of the blade of the speculum to get sample beyond the tip of the speculum. However, PW5 was unable to confirm after reaching 7cm in the vagina, how much deeper in the vagina the swab would go. However, it would have been between 7cm and 12.5cm (i.e. the total length of the shaft of the swab).

82.The endocervical swab was taken from the inner part of cervix, which is not deeper than where the high vaginal swab was taken. They are at different locations. A speculum was used. Similarly, the swab was inserted into the vagina for at least 7cm but did not exceed 12.5cm.

83.In PW5’s opinions, the fact that seminal stain was found on the vulval swabs, the low vaginal swabs, the high vaginal swabs and the endocervical swabs taken from X, would mean that ejaculation was very likely to have taken place. The fact that semen was found not only on the vulval swabs and the low vaginal swabs, but also on the high vaginal swabs and endocervical swabs, would mean that ejaculation had taken place deep inside the vagina. The prosecution submits that such opinions strength X allegation that sexual intercourse had taken place between her and D3.

84.In cross-examination, PW5 explained that the high vaginal swab was taken from an area slightly deeper than the endocervical swab. They are roughly of the same depth but are at different locations.

85.PW5 agreed that since the length of the vaginal canal seldom exceeds 10cm, high vaginal swabs and endocervical swabs were taken at a depth between 7 and 10 cm in the vagina in most circumstances. However, PW5 could not tell the exact length for X’s case as he did not measure it.

86.PW5 also agreed that since sperm is transferrable, he could not exclude the possibility it can be delivered into the vagina by other means such as finger.

87.PW5 agreed with the defence that as “sperm in liquid form could flow from point A to point B” it is possible that sperm “could have been flowing from high vaginal swab position to the outer part of the vagina and the other way round, from the outer part to where he took sample for the high vagina swab, depends on the posture, circumstances”.

88.In re-examination, PW5 was asked how finger could cause semen to be found in areas where the high vaginal swabs and the endocervical swabs were taken. PW5 explained that it would depend on the length of the finger, whether it is long enough and had previously dipped into semen. The finger would need to be inserted into the vagina between 7cm to 12.5cm.

89.When being asked whether semen would move to the area for taking the high vaginal swabs, if the finger only touched the area where the vulval swabs or the low vaginal swabs were taken, PW5 confirmed “not at that time”, and explained that whether the semen can subsequently move up, it would depend on the posture of the victim. Under gravity, semen would move upwards if the body posture was upside down.

Case to Answer

90.After the conclusion of the prosecution’s case, I ruled that there was a case to answer for both defendants regarding the respective charge they face.

Case of D2

91.D2 elected not to testify nor call any witness.

Case of D3

92.D3 elected to testify. He was the only witness for his case.

D3

93.D3 testified that he came to know about the Premises as a result of advertisement on Telegram.

94.On 7 January 2022, he arrived at the Premises. He was greeted by a lady and was then led into a room. He took a shower and waited for X. X later came into the room. As X said she was cold, D3 gave her a hug.

95.D3 then laid on the bed and X gave him a massage. At that point D3 was naked whilst X still had her clothes on.

96.During the massage, D3 asked X “don’t you need to go to school”, to which X replied: “finished studying”.

97.When the massage was finished, X took off her clothes. There were hugging and kissing between the two of them. By then they were both laying on the bed. X performed masturbation on D3. D3 also touched the vagina area of X. D3 eventually ejaculated. The masturbation lasted for about 10 minutes.

98.When D3 was about to get up and take a shower, X suddenly grabbed him and started to kiss him again. They continued kissing each other with D3 also touching X’s lower private part. D3 described that he had inserted his finger(s)  into X’s vagina until she reached climax. He then stopped. X went to take a shower. He put on his pair of trousers. He then heard someone shouting from outside the room “police” followed by the sound of breaking-in.

99.D3 further described that he did not see where his semen had landed when he ejaculated as the two of them were still hugging each other. D3 further said that after his ejaculation, he continued to touch X’s private part for another 5 to 8 minutes.

100.D3 said he never open or use any condom on that day. X was only performing masturbation for him. No sexual intercourse took place.

101.D3 further said that he did not think X was underage. He thought she was a Form 6 student, about 17-18 years of age.

102.In cross-examination, D3 confirmed that during his VRI he agreed with the summary made by the police officer about the course of masturbation, namely “at that time the two of you were stark naked, face to face, with the head facing the door, the two of you were kissing and touching all over the body. Ah Cash began to masturbate you with her hand until you ejaculated while you were not wearing any protection (Exhibit P5 #444 to #445).”  

103.D3 confirmed that when being asked as to what happened after the masturbation, D3 replied: “After the masturbation, I got dressed and she took a shower. Then the door burst open (Exhibit P5 #454 to #455).”

104.D3 agreed with the prosecution that there was no mention in his VRI about the continued kissing between him and X, the insertion of his finger into X’s vagina and the touching of  X’s vagina for another 5 to 8 minutes.

105.D3 further agreed with the prosecution that such details mentioned by him in his evidence in-chief (but missing from his VRI)  could have explained why even without sexual intercourse, his semen could still appear in X’s vagina. 

106.D3 further confirmed that he was asked by the police during the VRI: “ Do you remember at the time after Ah Cash masturbated you, you said you ejaculated. Well, do you remember where your semen was left?” To which D3 replied: “On her hand” (Exhibit P5 #460 to #461)

Analysis

107.I have considered all the evidence that has been adduced before me, as well as the submissions of Counsel. In reaching my verdict I remind myself that the burden of proof remains throughout upon the Prosecution to prove guilt beyond all reasonable doubt. The defendant has to prove nothing.  D2 elected not to give evidence. That is his right.  No adverse inference would be drawn against him. D3 has a clear record.  I have borne this in mind and given myself the requisite directions. I remind myself that I must be sure of the guilt of the defendants on each charge before I can convict. I consider each defendant and each charge separately. I also remind myself that if I am to draw inference, the inference must be drawn from proven facts and that the inference is the only irresistible inference to be drawn from the proved facts.  If the defence evidence pointing to innocence is true or may be true, it would mean that the defence has raised sufficient doubt in the prosecution case and the defendant is entitled to be acquitted.

Charge 2

108.I deal with Charge 2 first.

109.The material live issue in Charge 2 is the knowledge of D2, i.e. whether he knew the Premises was kept as a vice establishment.

110.It was submitted by the prosecution that: D2 was highly connected with the Premises. He had a high degree of participation in the operation of it. There was also a degree of monitoring by D2 over the business of the offence location, as revealed by the WhatsApp conversation between him and Kimmy (D1). He also had a close relationship with D1 who operated the Premises.

111.The prosecution invited this court to draw the only reasonable inference that D2 must have known that the Premises was operated as a vice establishment.

112.The prosecution prayed-in-aid the following facets of the evidence to support their argument:-

113.The Premises was rented in D2’s name. He signed the tenancy agreement, and contacted the property agent to terminate the tenancy. Both the electricity and the water accounts of the Premises were registered under his name.

114.He was observed by Y and Z as to his activities whilst at the Premises.

115.D2 was aware that girls of a very young age were working there.

116.The close relationship between D1 and D2.

117.There were WhatsApp conversation between D1 and D2 about the Premises.

118.The phone number of an account used in the Telegram advertisement was registered under D2’s name.

119.Having considered all the evidence before me, I am not satisfied that I am able to draw the only irresistible inference that D2 must have known that the Premises was operated as a vice establishment.

120.I agree that the sum total of the evidence suggest that D2 could very well have had a hand in the operation of the Premises. The key, however, is whether there is sufficient basis to substantiate that he did possess the requisite knowledge that it was operated as a vice establishment.

121.There was no evidence to indicate that D2 knew about the vice activities carried out at the Premises. There was no evidence to suggest he was aware of the same nor did anyone communicated such information to him.

122.It is true that D2 and D1 were, according to Y and Z’s observation, having a close relationship. However, even taking into account of all the evidence concerning the WhatsApp and Telegram communications. that would not have provided me with a safe basis to come to the conclusion that D2 must have known that vice activities were being carried out at the Premises.

123.Here I am being drawn to the piece of evidence of Y in telling this court that there were customers visiting the Premises for massage only. 

124.Girls of very young age working at the Premises is very suspicious in itself. However, I cannot simple equate that with the performance of vice services at the Premises.

125.As to the communications between D1 and D2 via WhatsApp, there was no explicit mentioning of the practice of vice activities at the Premises. Putting them to the highest, such communications were indicative of D2’s control in the operation of the Premises. However, as to the element of vice activities, it was not clear.

126.As to the company’s phone and the Telegram channel, it was the evidence from Y that she observed D2 unlocking as well as looking at the phone. However, she was fair to say that she was not certain what D2 was in fact looking at. With the evidence before me, I cannot simply reach the conclusion that D2 had the knowledge of all the information in the said Telegram channel.

127.In view of the above reasons, I cannot come to the conclusion that D2 must have had knowledge of the Premises being kept as a vice establishment, albeit it was highly suspicious.

128.I therefore find the prosecution not able to prove Charge 2 beyond reasonable doubt.

129.D2 is therefore not guilty of Charge 2.

Charge 3

130.The live issue in Charge 3 is whether sexual intercourse took place between D3 and X.

131.D3 testified and told this court that there was no sexual intercourse between him and X. Only masturbation was performed by X on him. He ejaculated as a result of the masturbation. There was fondling by D3 on X’s body, especially near her vaginal region, after D3’s ejaculation. It could be the result of the said fondling that caused the semen of D3 to be found inside X’s vagina.

132.I had no hesitation in rejecting D3’s evidence.  I did not find his evidence credible. 

133.D3 testified in chief that after his ejaculation, there were continued kissing between him and X, insertion of his finger into X’s vagina and the touching of  X’s vagina for about 5 to 8 minutes. None of them was mention by D3 in his VRI.

134.A more telling facet of D3’s evidence concerns the landing of his semen when he ejaculated. It was his version in-chief that when he ejaculated he did not see where his semen had landed as the two of them were hugging each other. Such assertion was completely different from what he told the police in his VRI, namely that his semen was left on the hand of X when he ejaculated.

135.I find that the continued kissing, hugging and fondling of X’s private part was a fabrication by D3 in an attempt to provide an explanation for the existence of his semen being found inside X’s vagina.

136.Having carefully considered all the evidence, I was satisfied that PW2 was witness of truth who gave credible and reliable evidence.

137.X gave clear evidence with regard to her having sexual intercourse with D3. She was adamant that D3 had ejaculated inside her body. 

138.She was challenged by the defence with regard to the fact that she described in her VRI that she saw D3 wore a condom, opened its package as well as putting it on.  X frankly admitted in her cross-examination she in fact did not see D3’s action in opening the condom as she was shortsighted. X also admitted that she did not have recollection of D3 opening the packaging of the condom. She said that she was under the impression that D3 had used a condom.

139.I find her explanation to be reasonable and would not affected her testimony with regard to her having sexual intercourse with D3.

140.With regards PW5, I also find him to be a credible and reliable witness and I accept his expert evidence in full.

141.I further find in line of the prosecution’s submissions that as per  PW5’s opinions “the fact that seminal stain was found on the vulval swabs, the low vaginal swabs, the high vaginal swabs and the endocervical swabs taken from X, would mean that ejaculation was very likely to have taken place. The fact that semen was found not only on the vulval swabs and the low vaginal swabs, but also on the high vaginal swabs and endocervical swabs, would mean that ejaculation had taken place deep inside the vagina.

142.I also agree with the prosecution’s submissions that such opinions of PW5 “strengthened X’s allegation that sexual intercourse had taken place between her and D3”.

143.Having considered all the evidence I am satisfied so I am sure that there was sexual intercourse between D3 and X (a girl of the age of 15 years)  on 7 January 2022 inside the Premises.

144.I am satisfied that the prosecution has proved beyond all reasonable doubt against D3 re Charge 3.

145.I find D3 guilty of Charge 3.

146.He is convicted accordingly.