Shing Hing Sang and Another v. The Queen
Read the full judgment text of CACC 193/1982 on BabelCite. This Court of Appeal judgment.
1. The first appellant (D.1) was convicted of the following offences -
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CACC000193/1982
Coram: Roberts, C.J., Huggins, V.P. and Barker, J.A. Date: 16, 17, 18 November and 2 December 1982 ------------------ JUDGMENT ------------------
Roberts, C.J.: Preliminary 1. The first appellant (D.1) was convicted of the following offences -
2. The second appellant (D.2) was convicted on count 4 - Rape - and Count 9 - Living on prostitution. 3. Leave was granted to both defendants to appeal against conviction by a single judge on the 8th June, 1982. D.1 applied for leave to appeal against sentence but this was refused by a single judge on the 8th June. D.1 renewed his application for leave to appeal against sentence, but withdrew it at the outset of the hearing before us. 4. When preparing this judgment, we noticed that in his application for leave to appeal against conviction, D.1 sought to obtain leave in relation to Counts 2, 3, 4, 5 and 8; but not against his conviction on Counts 1 and 10. Nevertheless, the hearing before us was conducted on the basis that the single judge had given leave to appeal in relation to all counts of which D.1 had been convicted. We therefore think it proper that we should assume that counsel for the first defendant had applied out of time to us for leave to appeal against conviction on Counts 1 and 10 and that we had granted such leave. Outline of facts 5. The offences of which the defendants were convicted occurred between September 1980 and Pay 1981. All have their origin in the manner in which one or other of the defendants, or both, treated a girl named LI Siu-fong ("Miss LI"), who was the principal prosecution witness. 6. Miss LI, then aged about 20, met D.1 in September 1980. He was known to her as "Chan Fai" and references to this name appear throughout the transcript. During the next few months, D.1 and Miss LI became friendly, from time to time meeting and taking part in various kinds of innocent social activity together. 7. At a fairly early stage in their relationship, about October 1980, Miss LI went through a triad initiation ceremony conducted by D.1, after which she regarded him in triad terms as being her "elder brother". She added that it was about this time that D.1 told her that he was a '426' office-bearer in the Wo Shing Wo Triad Society. 8. The Crown's case on the first count' was, however, based on the testimony of Yeung Ping-tine (P.W.1), a friend of Miss LI, who had known D.l since March 1980 and had introduced Miss LI to D.1. She testified that she also had been taken through a triad initiation ceremony by D.l and that about September/October 1980, D.1 told her that he had been promoted to be a '426' in the Wo Shing Wo (Count 1). 9. Expert evidence was given by Supt. Munford, a police officer with long experience of triad societies and their activities, to the effect that a number '426' in a triad society is an office-bearer. 10. About February 1981, Miss LI went abroad for a short holiday. On her return she met D.l whose attitude towards her seemed to have changed, though no explanation of this was advanced in evidence. 11. About the middle of March, D.1 asked Miss LI to meet him in a building known as the World Chinese Centre. When she arrived there, D.1 took her to a cubicle, locked the door and told her to take off her clothing. When she refused to do so, she was assaulted by D.1 who slapped, punched and kicked her. As a result of this she was frightened and removed her clothing, for fear that he might beat her further. This incident forms the basis of Count 2. 12. Later that day, D.1 took her to have her photograph taken. He then led her to the Kam Wong Nightclub, in Dundas Street, where she was registered as a hostess and given the professional name of "Ip Wah". 13. It is clear from her evidence and from other witnesses, for example LO Siu-ming ("Lo Ming"), the manager of the nightclub, that this was a vice-establishment, in which hostesses permitted male customers to perform acts of an indecent nature on them for payment. Although full sexual intercourse did not take place on the premises, the hostesses were engaged in acts of prostitution. Miss LI protested that she did not wish to work there but wanted to return to the electronics factory where she had been employed. D.1 threatened her with disfigurement if she tried to leave the nightclub, so she did not return to the factory. 14. Shortly after Miss LI began to work as a hostess, D.1 took her, in the early hours of the morning to the Pak Ka Lok Apartment House in Chatham Road. Here, he took her into a cubicle and forced her, after punching her, kicking her and grabbing hold of her hair, to have oral sex with him. This is the subject of the third count. 15. About three weeks' later, at the Kam Wong Nightclub, D.1 told Miss LI that she was to have sexual intercourse with Ah Cheuk (D.2), at which she protested. Later that evening, D.1 took her to the Pak Ka Lok Apartment House where D.1 led her to a cubicle, ordered her to take off her clothes, and forced her to have oral sex with him. While they were still in the cubicle D.2 arrived. 16. D.1 left, and Miss LI told D.2 that she did not wish to have intercourse with him. D.2 told her that if she refused, he would tell D.1 who would "give her a hard time", at which she was frightened. He then forced his way into her, against her will, though she told him not to do so, pushed him with her hands and wriggled her body away from him. 'This forms the subject of Count 4. Both defendants were charged jointly with this offence, D.2 with the act of rape, and DI because he had counseled or procured it. 17. During the period of about 10 weeks between the, registration of Hiss LI as one of the hostesses and the 30th April, 1981, when Hiss LI complained to a friend of hers of the manner in which she had been treated by the two defendants, she continued to attend as a hostess at the nightclub. She signed for her earnings, which were handed by Lo Hing, the manager, to D.1, who would extract a share and pass the balance to D.2. The latter would return part of the money to Miss LI. 18. According to Miss LI, it was D.1 who exercised control over her activities, as well as those of two other girls who were working in the sane vice-establishment. This was corroborated by LO Ming and others who worked there. This was the basis of Counts 5, 8 and 9. 19. On 30th April, Miss LI left the club and got in touch with the police, who arranged that her telephone conversations should be taped. On the 7th May, she had a conversation with D a in which D.2 also took part. 20. During this conversation, D.1 threatened that, if she were to leave him, "your limbs would be detached", she would be beaten up severely and that she would be disfigured. This is the subject of Count 10. 21. Neither defendant gave evidence nor called any witnesses, though they sought to adduce evidence of two kinds which were the subject of argument during the appeal and will be considered below. Claiming to be an office-bearer 22. D.1 was convicted of claiming to be an office-bearer of an unlawful society (Count 1), on the basis of the evidence of Miss Yeung that he had told her that he was a '426' office-bearer in the Wo Shing Wo Triad Society. 23. Counsel or D.1 based his submission that this conviction was wrong in law on R. v. MG Chi-wah(1), in which this Court, by a majority, decided that the words "professing" and "claiming" in section 19 of the Societies Ordinance have different meanings. The majority expressed the view that "claim" should be construed `in a stronger 'sense, where an allegation of triad membership was intended as a threat to procure an advantage of some kind; and that by contrast "profess" was "claim" in a weaker sense, without any suggestion that the assertion of membership was being used as a form of pressure. In his dissenting judgment, Briggs, C.J., however, saw no need for any distinction of this nature to be drawn. 24. In NG Chi-wah(1) , the defendant was charged with being a member of a triad society. This charge was altered by the magistrate to one of claiming to be a member of a triad society. The only evidence against the defendant was a confession of membership of a triad society, contained in a cautioned statement made to a police officer. Although this court decided that a mere admission of membership did not amount, in law, to "claiming", it expressed the view (obiter) that on the evidence the defendant could properly have been convicted of "professing" to be a member. 25. In R. v. CHENG Chung-wai(2) , another division of this court, when considering a case in which the facts were very similar to those in NG Chi-wah(1) , decided that a confession of triad membership made by a defendant under caution to a police officer could not, in law, amount to "professing" membership, because such admission under caution could not, itself, constitute, the actus reuse of a crime -though of course it could amount to evidence of membership simpliciter. 26. Thus in NG Chi-wah (1), this court found that a confession to a police officer under caution could not amount to "claiming" to be a member of a triad society, but expressed the view that it would be an offence of "professing". In CHENG Chung-wai (2) , it decided that such a confession could not amount to a "professing", contrary to the opinion expressed obiter in NG Chi-wah(1) while the decisions in the two appeals do not conflict, the reasons are not reconcilable. NG Chi-wah(1) was based on an interpretation of "claiming" which would have permitted a confession to a police officer, provided it were in "strong terms", to be the basis of a conviction under section 19 of the Societies Ordinance. CHENG Chung-wai(2) decided that no such conviction would be possible because a :confession in answer to a charge could not constitute an actus revs. 27. Thus there are effectively two conflicting earlier decisions of this court. This is one of the circumstances in which it is open to us on the principle of Young v. Bristol Aeroplane Co.(3) , to follow whichever of them we think fit, or indeed neither. 28. We agree both with the decision that a confession after caution to a police officer cannot itself constitute "professing" and with the dissenting opinion of Briggs, C.J. in NG Chi-wah(1) that no sensible distinction can be drawn between "professing" and "claiming". Had it been necessary to find such a difference, we would have been inclined to interpret a "claim" of membership as arising when the claimant was not in fact a member of the unlawful society but was asserting that he was; whereas "profess" could be reserved for those occasions on which a person asserts that he is a member when he is so in fact. However, we regard such a distinction as unrealistic and unnecessary. We think that the courts should regard the two words as being effectively synonymous. 29. Thus we have concluded that D.1 was properly convicted on the first count. Triad Membership 30. It was submitted on behalf of D.1 that evidence as to his "triad membership and triad activities, including the carrying out by him of initiation ceremonies involving both the complainant and her friend, Yeung Ping-ting, was inadmissible, because it tended to show that the defendant s guilty of offences with which he was not charged, and had caused great prejudice to him. 31. There is no bar to the admission of such evidence, if it is relevant to an issue before the jury. In this instance, the evidence of the triad membership and activity of D.1 was relevant to the issue of whether or not the defendant was guilty of claiming to be an office bearer in a triad society, 32. As a matter of common-sense, it is more likely that a defendant who has indulged in triad activities did claim that he was an office bearer in the triad society, than someone against whom there was no such evidence. It therefore has probative value in relation to the charge and cannot be said to be prejudicial only. 33. Furthermore, the judge warned the jury that if they found D.1 guilty on the first count, which would involve a finding that he was a member of a triad society they were not to come to the conclusion that he was therefore guilty of any of the other offences. 34. He also reminded them that D.2 was not charged with any triad offence and must be tried only on the offences which had been preferred against him, on the evidence presented to the jury. The judge added that It was not a trial based on prejudice. 35. We think that the evidence was admissible for the purposes of the first count and that, insofar as the triad atmosphere which surrounded the case might have prejudiced either of the defendants, the judge's warning to the jury was sufficient to prevent this happening. Refusal, of judge to permit witness to be called 36. One of thief appeal upon us was that the judge had wrongly refused to permit counsel for the defence to call a hiss Pang, the personnel manager at the factory at which Miss LI worked. 37. At the close of the Crown's case, counsel for D.1 informed the court that he intended to call Miss Pang, who would give evidence to the effect that Miss LI had not worked, during the eighteen months before she became hostess, for more than one shift a day in the factory, whereas in her evidence Miss LI had asserted that she had worked a double shift for most of that period. 38. The defence contended that such evidence would do more than attack the credibility of Miss LI and that it would be relevant to a main issue in the case; which was whether she had been a volunteer, in the sense that she had become a hostess willingly in order to make extra money, or whether she was forced to become a hostess against her will, she having asserted in evidence that her earnings from the factory were sufficient for the needs of herself and her family. 39. Counsel for the Crown objected to the calling of this witness on the basis that her evidence could deal only with collateral matters, evidence of which was not admissible. The judge ruled in his favour, and Miss Pang was not called. 40. The general principle, which is a sound one and is based on the need to avoid a multiplicity of issues, is that answers given by a witness to questions put in cross-examination on collateral matters must be treated as final. The answers may, or may not, be accepted by the jury but the cross-examiner must accept them and cannot contradict them by other evidence. 41. Consequently, it is not permissible to call a witness merely to discredit another witness, though another witness may be called to contradict an earlier witness on a matter which is an issue in the case. 42. There are a number of established exceptions to the general rule excluding evidence of collateral, issues, for example, evidence of previous convictions, of bias by a witness or of a previous inconsistent statement made by a witness. 43. The evidence of Hiss Pang would not fall within any of these exceptions. The question, therefore, to be decided is whether what she could say was on a collateral matter and merely went to the credit of Miss LI or whether it was relevant to an issue in the trial. 44. The willingness or otherwise of Miss LI to become a hostess was part of the general history of what occurred, but it was never a central issue in relation to any of the charges. The fact (if it was a fact) that she was willing to become a hostess could not have justified the violence and threats used against her which are the subject of Counts 2, 3 and 10. Nor is the question of whether or not she was a willing or unwilling prostitute-relevant to Counts 5, 8 and 9, which rely on proof that one or other of the defendants exercised control over her activities as a prostitute or lived wholly or partly on her immoral earnings. Nor could it have been relevant in relation to Counts 1 and 4. 45. We have therefore come to the same conclusion as the trial judge, namely, that the evidence of Miss Pang could have had no relevance to any of the issues in the trial. What it right have done is to throw some doubt upon the reliability, of Hiss LI, but it is clear from the authorities that the calling of a witness merely in order to attempt to destroy the credibility of another witness is not permitted. If it were, trials would be endlessly prolonged and side issues would proliferate. 46. In passing, it is worth noting that another objection put forward on behalf of D.2 was that he was not permitted to ask a police officer, tendered for cross-examination by the Crown, whether D.1 had a good character, as he had. 47. Counsel for the Crown objected to, the police officer being asked to give such evidence, arguing that it ought to be given by the defendant himself or at least by a witness called by him. 48. The judge ruled that such questions could not, in view of the objection raised by the Crown, be extracted by the defence in the way suggested, since the answers were strictly-speaking hearsay, if given by an officer who had not examined the criminal records. 49. Since the Crown objected to the extraction by this means of evidence which is technically hearsay, it was open to the judge to rule as he did. 50. Moreover, the defence could hardly be said to be prejudiced thereby. It was open to them to call such evidence as to the good character of D.1 as they wished. They chose neither to call the defendant himself nor any other witness as to his character. 51. There is no suggestion that the judge led the jury to suppose that the defendant had anything other than a good character. Case against each defendant to be considered separately (Count 4) 52. Both defendants were jointly charged with this offence. D. 1 being said to have procured the rape of Miss LI by D.2. 53. Objection was taken by counsel for D.1 to a passage in the summing-up in which the judge directed the jury as follows -
54. In a later passage of his summing-up, the judge says -
55. The judge is correct in-these passages to the extent that if D.2 is found not guilty of the substantive charnel of rape, D.1 must also be found not guilty of counseling and procuring. But the converse does not apply. If D.2 is found guilty of the substantive offence of rape, D.1 may either be guilty or not guilty of counselling and procuring. 56. On the evidence, it would have been open to the jury to come to just such a conclusion, namely, that D.2 had committed rape, but that D.1 had not counselled and procured it. We cannot say that this unfortunate slip, repeated twice during the summing-up, may not have misled the jury into thinking that they should not consider the case on this count separately against' each of the defendants. Therefore we have no alternative but to quash the conviction of D.1 on this count. Recklessness in rape (Count 4) 57. Counsel for D.2 argued that the conviction of D.2 also could not stand because the judge had misdirected the jury in two important respects -
58. On the charge of rape it is necessary for the prosecution to establish that -
59. The first complaint made on behalf of D.2 was that the judge's direction to the jury on the question of "recklessness" was inadequate and misleading. 60. Considerable reliance was placed on the recent decision of Stephen Pigg v. The Queen(4) in which the English Court of Appeal examined recent House of Lords cases on the question of "recklessness" in relation to criminal charges. Lord Lane, C.J., who delivered the judgment of the court, commented -
61. The trial judge in Pigg (4) had used the following formula, in his summing-up, which was said by the appellate court to be too favourable to the defendant -
62. The trial judge in this case directed the jury as follows -
He goes on -
63. As appellate courts have repeatedly said, there is no special formula that has to be used in directing juries in relation to the constituent elements of criminal offences. 64. The views expressed by the English Court of Appeal in Pigg (4) go no further than to require the trial judge to ensure that the jury should be told that a man is reckless either if he is indifferent or if he is aware of a possibility of the woman not consenting but nevertheless persists. 65. In this case, the trial judge's direction makes it clear that "recklessness" includes indifference on the part of the defendant and his awareness that there might be a risk that she did not consent. 66. We are satisfied that both directions contain the same essential elements and that to try and distinguish between their meaning and effect is to do no more than juggle with words. Direction on consent (Count 4) 67. The other criticism of the judge's summing-up in relation to this count was that he had misled the jury by his references to "consent" towards the end of his summing-up. Miss LI gave evidence that there had been intercourse between herself and D.2 against her will: The Crown produced in evidence a statement made by D.2 to the police, in which he admitted intercourse with her but insisted that she had consented to it. 68. The judge was therefore fully justified in telling the jury that sexual intercourse was not in dispute and that the only matter with which they were concerned was the question of whether Miss LI consented to sexual intercourse with D.2. 69. However, issue was taken with the following comments made by the judge in the presence of the jury, during argument as to whether a further direction was required -
70. These statements were followed by this direction -
71. The argument put forward on behalf of D.2 was that the jury might have thought from these passages that the burden of proof in relation to the question of consent by Miss LI had been reversed and that D:2 should be convicted of rape unless there was corroboration of D.2's assertion that she had consented to intercourse. 72. It was made abundantly clear by the judge, in other passages of his summing-up, that the burden throughout lay upon the Crown to establish to the satisfaction of the jury that D.2 had had intercourse with the complainant without her consent. 73. We think that, against the background of the general direction as to the burden of proof, the jury would have assumed that the judge was telling them that there was no corroborative evidence at all of the absence of consent and that they must, in deciding this matter, base their conclusion as to consent on the unsupported evidence of Mr. LI and the statement of D.2. 74. Having said this, the passages cited can be criticized as containing a somewhat unfortunate choice of phrase. While we do not think that it is likely that the jury were misled by it, the possibility is there. We have no doubt, however, that if they had been more clearly directed on the matter, they would have come to the same conclusion, since they can only have decided that Miss LI was worthy of belief and that D.2's assertion of innocence in his statement was not. This is a proper case for applying the proviso and we do so accordingly. Counts 5, 8 and 9 75. These counts deal with the control of a prostitute or with Livonia off her immoral earnings. Section 130 of the Crimes Ordinance provides that a person shall not be convicted of the offence of exercising control over a prostitute (Count 5) on the evidence of one witness only, unless that witness is corroborated in some material particular by evidence implicating the accused. This requirement of corroborative evidence does not apply to living on prostitution, contrary to section 137 of the Crimes Ordinance (Counts 8 and 9). 76. Miss LI's evidence was that she worked in the nightclub at the direction of D.1 and under his control and that her entire earnings were handed to D.1 by Lo Ming on each pay day, in her presence. D.1 then passed part of her wages to D.2, who gave her a small residue. 77. The main criticism in relation to Counts 5, 8 and 9 was that the judge was at fault in not directing the jury that the four witnesses who gave evidence as to the activities of Miss LI in the vice-establishment were accomplices and that their evidence should be approached with the degree of suspicion which is appropriate to such evidence. 78. These witnesses were Lo Mine (P.W.6), the manager of the Kam Wong Bar and Nightclub; Cheng Yik-por (P.W.5), the floor manager of the same establishment; Chan Kwai-shing (P.W.7) the cashier; and Chau Kam-suen, an usher (P.W.8). 79. Lo Ming, the manager of the Kam Wong Bar seems to have exercised a degree of control over Miss LI while she was performing as a hostess in the nightclub, in the sense that, as manager, he was in a position to direct customers to her, though the evidence was clear that Miss LI's principal controller was D.1 80. We do not think that it can be said that the floor manager, the cashier or the usher, exercised any general control over Miss LI's activities as a prostitute, nor that they were directly profiting from any of her earnings as such. They were fellow employees in a vice-establishment from which they derived wages, but there is no evidence at all that any of them received anything from Hiss LI; indeed, the evidence was that her earnings all went to D.1 in the first instance. 81. The judge should have directed the jury that Lo was an accomplice, that consequently his evidence should have been approached with proper suspicion and that it could not provide the corroboration necessary for a conviction under section 130 of the Crimes Ordinance. 82. Even if the jury, had been so directed, and had discounted the evidence of Lo, there was abundant corroboration on Count 5 from other witnesses. P.W.5, the floor manager of the nightclub confirms Miss LI's evidence that she operated under the control of Chan Fai (D.1) the so-called "external-affairs manager". The cashier Chan Kwai-shing (P.W.7).confirms that Miss LI was subject to the supervision and control of Chan Fai (D.1). The usher, Chau Kam-suen.(P.W.8) testified that Miss LI was working directly under Chan Fai (D.1). 83. Although, therefore the judge failed to warn the jury that Lo Shing should be regarded as an accomplice, there was abundant other evidence from those who were not accomplices to justify the conviction of D.1 on Counts 5 and 8 and of D.2 on Count 9. We shall apply the proviso in relation to Count 5. Summary 84. We dismiss the appeals of both defendants against their convictions in relation to all counts, save only that the appeal of D.1 against his conviction on Count 4, the rape count, must succeed and that conviction must be quashed. 85. The judge directed that the sentences on Counts 1, 2, 3, 4, 8 and 10 should run concurrently, and that the sentences on Counts 4 (10 years) and 5 (4 years) should run consecutively, giving a total of 14 years. 86. The judge must have intended the four years under Count 5 to run consecutively to the sentences on all the other counts. The conviction and sentence on the fourth count having been quashed, the four years imposed on Count 5 will run consecutively to the three-year sentences imposed on Counts 2, 3, 8 and 10, so that D.1 will serve a total of seven years' imprisonment. Addendum 87. After hearing counsel we ordered -
(1) [1978] H.K.L R. 101. (2) [1980] H.K.L R. 593. (3) [1944] K.B. 718 (4) [1982] Cr.App.R. 352 Representation: R. Whitehead (D.L.A.) for 1st Appellant I. Payne (D.L.A.) for 2nd Appellant K.B. Egan, Crown Counsel, for Respondent |