R. v. Wong Lok Sun

HCMA000679/1994

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 679 OF 1994

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Coram: The Hon. Mr. Justice Keith in Court

Date of hearing: 27 July 1994

Date of delivery of judgment: 27 July 1994

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J U D G M E N T

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1. On 18th June 1994 at Tuen Mun Magistrates' Court, the Appellant was convicted, after pleading not guilty, of a charge of living on the earnings of prostitution contrary to section 137(1) of the Crimes Ordinance (Cap.200). He was sentenced to 6 months' imprisonment and ordered to pay costs of $3,500. He now appeals against his conviction.

2. The evidence of PW1, an undercover police officer, which the magistrate was accepted, was that early one morning he went to a building in Yuen Long where he met the Appellant. The Appellant asked him if he wanted a girl, and told him that Malaysian, local and girls from the Mainland were available. He added that girls from the Mainland would cost $380, and the price included a "blow-job" as well as sexual intercourse. PW1 was then shown into a room, where the Appellant later brought a girl to him. It is unnecessary to record what then happened, but PW1 was spared the ultimate ordeal by the timely arrival of other police officers.

3. Mr. M.K. Wong for the Appellant criticises the magistrate's acceptance of PW1's evidence. It is said that although the magistrate acknowledged that there were discrepancies in PW1's evidence, he did not specify what they were or seek to resolve them. Indeed, I cannot myself tell from his notes of the cross-examination of PW1 what the discrepancies actually were. However, the discrepancies in PW1's evidence, whatever they were, did not relate to PW1's evidence as to what had occurred on the occasion on which he met the Appellant. The discrepancies concerned the circumstances in which (a) PW1 made a witness statement, and (b) copies of that witness statement (and subsequent revisions of it) were made. There was no suggestion whatever that PW1's evidence was in any way inconsistent with what his witness statement said. Indeed, there was not even a suggestion in the cross-examination of PW1 that any of his evidence relating to his visit to the building where he met the Appellant was wrong. In those circumstances, to criticise the magistrate's acceptance of PW1's evidence on the basis that he did not resolve the discrepancies in PW1's evidence on a wholly peripheral issue is, in my judgment, completely unjustified.

4. In Leung Chor v. R. [1963] HKLR 825, Blair-Kerr J. held that on a charge of living on the earnings of prostitution, the prosecution had to prove that in some way the defendant had benefited substantially from the earnings of prostitution so as to enable the magistrate to conclude that he was living, at least partly, on them. Mr. Wong criticises the magistrate for failing to consider that issue or to make a finding of fact on it. However, section 137(2) of the Ordinance provides that the defendant will be deemed to be knowingly living on the earnings of prostitution if he is proved to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that he is aiding, abetting or compelling her prostitution, unless the defendant can satisfy the magistrate to the contrary. The magistrate made a finding on that issue because his notes of the proceedings show that when he convicted the Appellant he said :

"The events and acts of the Defendant in leading PW1 to the Room and then taking the girl to the Room where PW1 was clearly showed the Defendant had control and influence over the girl's movements."

Indeed, the magistrate added in his Statement of Findings the fact that the Appellant had discussed the price of the girl with PW1. In my view, that finding of fact cannot be challenged, and it made it wholly unnecessary for the magistrate to consider whether the Appellant had benefited substantially from the earnings of prostitution, because that finding had the effect of the magistrate being entitled to presume that the Appellant had been knowingly living on the earnings of prostitution. Since the Appellant did not give evidence, there was no material before the court to rebut that presumption.

5. There is one other matter which I ought to mention. In Leung Chor, Blair-Kerr J. said at p.834 :

". . . it must be very rarely that a court can possibly be satisfied that an accused person is living on the earnings of prostitution if the evidence called relates exclusively to the behaviour of one woman on one occasion on one day."

However, there are occasions when the court can be satisfied of that even without resorting to the presumption. A case cited by the magistrate in his Statement of Findings - R. v. Leung Cheong [1988] 1 HKLR 103 - is such an example. The magistrate specifically referred in his Statement of Findings to the fact that the evidence in this case related to the facts of a single incident. It is not suggested by Mr. Wong that the magistrate was wrong to conclude that the facts relating to this one occasion were insufficient to justify the inference that the Appellant had been knowingly living on the earnings of prostitution. If Mr. Wong had submitted that, I would have rejected it.

6. I cannot discern any other grounds of appeal, and this appeal, therefore, must be dismissed.

Representation:

Ms. Yasmin Mohamed, S.C.C., for the Crown

Mr. M.K. Wong, inst'd by Messrs. C.K. Mok & Co., for the Appellant