HKSAR v. Lam Yam Kit

CACC000189/1999

CACC189/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 189 OF 1999

(ON APPEAL FROM DCCC 28 OF 1999)

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Coram: Hon. Nazareth, V.-P., Stuart-Moore, V.-P. and Keith, J.A.

Date of Hearing: 26 August 1999

Date of Judgment: 26 August 1999

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J U D G M E N T

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Stuart-Moore V.-P. (giving the judgment of the Court):

1. On 24th March 1999, the Applicant, now aged 19, was convicted of living on the immoral earnings of prostitution of Wong Siu-lai (PW1) and assault with intent to cause PW1 to work as a prostitute. Following a trial in the District Court before Judge Sweeney, he was sentenced to undergo a period of training at a training centre. The Applicant now applies for leave to appeal against his conviction.

2. The prosecution's case, which was dependent upon the evidence given by PW1, was that she had effectively been tricked into becoming a prostitute when she agreed to stand, at the age of about 16, as guarantor for a loan taken out by the Applicant after they had been in a relationship together for about a week. Soon afterwards, the Applicant told her that he needed money to repay his debt and that if she did not come up with the money herself, the loan sharks would cause trouble to her family. Allegedly, she then reluctantly agreed to work as a prostitute and did so, to begin with, at a sixth floor brothel run by Pang For-cheuk (Pang) in Mongkok. Later, she worked in other brothels. She paid her earnings to the Applicant. Several times she ran away, but was beaten by the Applicant as a punishment. She was also forced to take out loans from loan sharks herself. Despite this, the Applicant and PW1 moved into a flat together. Violence and threats continued and on one occasion, the subject of charge 2, the Applicant took a kitchen knife out after he had threatened to destroy her face. She knelt down to beg him not to do so. Instead, he cut a small wound in her thigh.

3. This activity went on between February and December 1997, until eventually PW1 left the flat they were sharing and the Applicant had to go to find her at her mother's house. He went there in the early hours of one morning, trying to persuade her to come back with him, but PW1 refused. She telephoned Pang who came and spoke to the Applicant. Only then did he go away.

4. The defence was wholly at odds with that account. The Applicant testified that he held two jobs in 1997. They were as a newspaper seller earning $7,000 to $8,000 a month and as a film extra or casual actor. He met PW1 in the company of his friend, Pang, who later informed him that PW1 was a prostitute. Nevertheless, they became friends and the Applicant came to realise that PW1 had to work as a prostitute in order to repay loans made to her by loan sharks. The Applicant denied any connection with any of PW1's loans, except that from time to time he would help her to pay the interest on them. He admitted living with PW1 between May and November 1997, and he said that, for practical purposes, all the outgoings were paid by himself. He added that he had a further source of income which came from his mother who was lending him money so that he could set himself up in a loan-sharking business. He denied any violence on PW1 beyond slapping her face when she appeared not to be listening to him at times when he was trying to reform her and lead her away from her lifestyle.

5. As the judge remarked in his Reasons for Verdict, the Applicant had provided, in his evidence, no real reason at all why all his kindness towards PW1 should result in her making false allegations against him.

6. The Applicant's mother and Tan Chun-ngai (Tan), who was the manager of the Shan Lam Villa in early 1997, where many of these events had taken place, both gave evidence in support of aspects of the Applicant's case. Tan, who had been convicted after 1997 of managing a vice establishment, testified that PW1 had been a prostitute in January 1997 (at a time before she had met the Applicant on her version), that the victim was often in arguments with other prostitutes and that she borrowed from loan sharks. However, whilst this evidence was of considerable significance if it was believed, Tan had denied several times that he had spoken to the Applicant about what he would say in court before he had given evidence, but he eventually conceded that the two of them had had a lengthy conversation about the questions he was likely to be asked in court.

7. Following a meticulous analysis and assessment of the evidence, the trial judge was satisfied that the charges were proved and that, so far as charge 1 was concerned, that the Applicant had failed to rebut the presumption that he was living on the earnings of a prostitute having admitted that he was living with her.

8. The Applicant has set out lengthy grounds of appeal but they amount in reality to one point. It is his submission that he was wrongly convicted by a judge who was biased against him and who, accordingly, found the prosecution witnesses were to be believed and that his own witnesses were not to be believed. As the Applicant put it today, the judge patched up inconsistencies which were to be found in the prosecution's evidence. His grounds effectively set out his own side of the story again on matters that were fully canvassed during the trial.

9. These proceedings are not a re-trial and the Applicant has shown a misunderstanding of the whole purpose of appellate proceedings. We have had the advantage of being able to look at the findings made by the trial judge, and we can say with confidence that these findings reveal no misdirections which could lead us to interfere with the verdicts which were fairly and properly recorded.

10. The Applicant today in court has added nothing which is material to any of the points contained in his original written application. He brought with him to court a number of witness statements and referred us to the fact that there are inconsistencies in the statements of PW1 compared with what she had said in court. He also informed us that his mother, since the proceedings in the District Court, had managed to locate a witness who might be able to give evidence along similar lines to that given by Mr. Tan in the court below. That application for further evidence to be called under section 83V of the Criminal Procedure Ordinance, Cap. 221, has already been refused by us. We did not consider it necessary or expedient to hear from such a witness and, indeed, the judge in the court below rejected evidence of that kind having heard Tan on behalf of the defence.

11. One other matter to which the Applicant referred today is that on a number of occasions, PW1 had golden opportunities to report what was happening to her, if her story was true, one of those being when she was herself arrested by police.

12. None of these matters affect our judgment that the verdicts were sound. Accordingly, the application is dismissed.

Representation:

Mr. Edward Lee, S.G.C. for D.P.P./Respondent

Applicant in person.