Cheung Chi-man v. The Queen

CACC000265/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 265 OF 1974

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Coram: Briggs, C.J., McMullin & Pickering, JJ.

Date of Judgment: 28 October 1974

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JUDGMENT

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McMullin, J.:

1. The appellant is one of six men who were charged in connection with the abduction of a young woman called KONG Mei-kei upon the 7th of November 1973. One of their number the first accused, LAM Kwok-wah, had additionally been charged with blackmail in respect of a demand for money from the same young woman about one week prior to that date. All six were tried together and five of the six defendants were found guilty upon various charges. The present appellant was the fourth defendant. He was concerned upon two of those charges which were, firstly, a charge of trafficking contrary to section 3(1)(d) of the Protection of Women and Juveniles Ordinance, Cap. 213; and secondly, with forcible abduction contrary to the provisions of section 25 of the same Ordinance.

2. The complainant in the case had been working as a hostess in a dance hall and she had fallen into debt. She owed money to the first accused and to another man called LAN Sai. There were some preliminary negotiations concerning these loans which culminated on the 31st of October in a meeting at a restaurant between the complainant, the two creditors and some other people to discuss these outstanding loans. Threats were made against her on that occasion but on the arrival of some police officers the first defendant and the second defendant, who was also present, Lan Sai and their friends left the restaurant hurriedly and the complainant made her way home. She tried to raise money thereafter but was unable to do so, and on the 7th of November she went and reported to the police.

3. On the evening of that day she went to a certain billiard hall ostensibly to meet a friend and to recover some clothing which had been lent. She spent some two hours there and at the end of that time two men who were friends of the first defendant, and who had been with him during the negotiations on the 31st of October, entered and demanded that she accompany them downstairs. She refused and they forcefully hustled her down into the street where she saw the first defendant, the second defendant and the present appellant (the fourth defendant). These three were standing near a car and her two abductors, Wai Chai and Ah Kuen, pushed her into the car and the three defendants all got in after them. Wai Chai punched the girl several times inside the car. The second defendant then drove to a restaurant near Morrison Hill Road. There is no doubt that at this stage all these men including the present appellant appeared to be interested in obtaining from the complainant some guarantee of repayment of money. The sum which was now demanded however, no doubt by the imposition of some extraordinary rate of interest, amounted in total some $15,000. Various expedients for repayment were discussed. The complainant also rang her mother in order to borrow money but there was no help forthcoming from that quarter.

4. Eventually the first defendant took her aside and suggested that she should work as a prostitute in order to get money to repay himself and his friend. She refused but he insisted and the whole party then conducted her from the restaurant and drove her in the same car to another restaurant in Kowloon where they had something to eat. It was the complainant's contention that she had gone with them unwillingly on this occasion also. There was further discussion concerning the repayment of loans and the possibility of her working as a prostitute. She was taken to a brothel the proprietor of which was the fifth defendant who appears to be a friend of the second defendant. Arrangements were made with the fifth defendant for her to work at that place and she was then taken to the second defendant's flat where she spent the night guarded by the second defendant, the appellant and some others. The appellant was amongst those who conducted her there.

5. On the 8th and 9th she was taken to the fifth defendant's premises by several of the defendants including the appellant and was left there. During those days she was called for by various clients at other brothels in the neighbourhood and was conducted to these premises by an employee of the fifth defendant who waited for her to deal with her clients and then took her back to the fifth defendant's premises pocketing the money which she had received from those clients. At the end of each of these days several of the defendants including always the appellant returned to the fifth defendant's premises and took her back to the second defendant's premises at the Mei Foo Sun Chuen Estate. The money which was the proceeds of these transactions was invariably handed over by the girl's guardian to the fifth defendant.

6. On the evening of the 9th of November she was taken to a brothel owned by the third defendant and arrangements were made with him for her to work from that premises. Early in the morning of the 10th she was taken back to Mei Foo Sun Chuen by the first defendant, second defendant and fourth defendant and another man. On the 10th and 11th she was conducted to the third defendant's place by the appellant and the others where she was given some money by the third defendant to have her hair dyed and to get herself a dress and, between the afternoon of the 10th and midnight, she was conducted to no less than five different brothels where she had intercourse with five men. On each occasion her custodian, who was not one of the defendants, collected the money for her services and returned it to the third defendant. She would then be fetched back to the second defendant's premises by the appellant and the others.

7. The same thing happened on the 11th of November and having completed her evening assignments the second defendant, the appellant and another man called to collect her about 3.30 a.m. on the morning of the 12th. She was then induced to sign a document which stated that she owed the third defendant $3,500 this being, apparently, money advanced by the third defendant to the second defendant part of which was later paid by the second defendant to the first defendant. The appellant was in attendance at the time when this document was signed by her and he in fact countersigned it as a guarantor or sponsor. She went back with them to the Mei Foo Sun Chuen Estate where in the usual way she went back still under guard by the first defendant, second defendant, another man and the appellant. At noon on the following day on the pretence of going to see a friend she was permitted to go downstairs and she made her escape and later reported to the police.

8. Mr. Kwok who argued the case very persuasively for the appellant asks us to say that there are certain material errors in law and upon the facts in the finding of the learned District Judge. Firstly, he complains that the learned District Judge wrongly concluded that the complainant was not at the material date a prostitute. There is no doubt that the judge did so find but the first of the arguments in support of the contention that it was wrong to do so is clearly without substance. It is said that the District Judge overlooked the fact that on the 8th and 9th of November the girl had admittedly had intercourse on no less than six occasions at various brothels. That is perfectly true but those acts of intercourse arose directly out of the alleged coercion of the girl by the appellant and his friends. Even if it were necessary to show as part of the Crown's case that the complainant was a prostitute for the purposes of a charge under Section 3(1)(d) it would be quite wrong to have regard to conduct which was the direct result of the very acts of the accused which are complained of in the charge. This conclusion is no way weakened by the fact that the learned judge convicted the fifth defendant on the fifth charge, which is a charge of living on the earnings of prostitution, relying for the purpose upon the evidence of the complainant which showed that he had between the 7th and 10th of November received money for her services as a prostitute at brothels to which she was directed by him. It would be wanting in common humanity let alone commonsense for the court to afford to persons accused of forcing a girl into prostitution any relief deriving from her character as a prostitute when that character was the direct product of the acts complained of against the defendants.

9. There may be more substance to the suggestion that this complainant should have been regarded as a common prostitute by virtue of the fact that she had, as was admitted, on two previous occasions while working in the ballroom as a dance hostess engaged in acts of sexual intercourse with two clients on two different occasions. To this was added the fact that she had on other occasions given or taken part in nude shows of a lesbian character before mixed audiences. A nice question undoubtedly arises as to whether such conduct does conform with that definition of prostitution given by Darling J. in Rex v. De Munck⁽¹⁾ at page 637 where he says that prostitution is proved if "it be shown that a woman offers her body commonly for lewdness for payment in return." In a later case, Regina v. Webb⁽²⁾ it was held that girls who were employed as masseuses had acted as common prostitutes in masturbating men who resorted to the premises where they worked. A case in which Widgery J. (as he then was) remarked, arguendo, that a strip-tease act if it were lewd or obscene might amount to prostitution. This suggestion seems, however, not to have been taken any further either by counsel in arguing the case or in the course of the judgment. We think it unnecessary to consider this particular question further, on the facts of the present case, because as it appears to us that there was, in any event, no onus upon the Crown, in proving its charge, to show that the girl was not a prostitute. Mr. Kwok sought to rely upon the decision of the Full Court in IP Kam-shing v. The Queen⁽³⁾ a case concerning a charge under section 4(1)(b) of the Protection of Women and Juveniles Ordinance where it was held that the accused could not be convicted of procuring under that section when there was evidence to show that the women procured might reasonably be regarded as having already the character of common prostitutes. The analogy is not an apt one for section 4(1)(b) prohibits the procuring of a female to become a common prostitute a form of words which naturally implies that, prior to the act of procuration, she was a person of decent character or at least not a common prostitute. Section 3(1)(d) totally forbids a variety of activities which are detailed in the section and all of which are aimed at using a female for the purpose of prostitution. Under this section it is clear that the character of the person so used is immaterial although no doubt the gravity of the offence would be greatly increased if the female complainant should prove to be a person of good character.

10. Then it is said that the learned judge failed to take adequate cognisance of the fact that there was no evidence that the complainant was "disposed of" between the 10th of November and the 12th of November within the meaning of the section. The suggestion here was that since the earlier words of the section such as selling, pledging, letting out to hire, purchasing, taking in pledge etc. all imply a transfer of possession of the property in the person so used for a money consideration, that the words charged viz.: "or otherwise disposing of" must be read ejusdem generis with the foregoing words. If so read, it was argued, and since the evidence showed that the girl's captors recovered her at the end of every day's work, and, further, that the financial arrangements made with the brothel keepers concerning her were vague and inconclusive, the transaction in the present case lacked both the element of transfer of property and proof of commercial gain required for a conviction. In relation to this contention there is a preliminary difficulty owing to the fact that in this territory it is provided by the Interpretation and General Clauses Ordinance that in enactments of the Legislature the word "or" should be read disjunctively a provision which, whatever the full implications of it (and we prefer not to attempt it an authoritative exposition of its meaning for the purposes of the present case) obviously raises considerable difficulty in relation to the manner in which the ejusdem generis rule may be applied in Hong Kong, if it is to be applied at all. Apart from that, however, the present point may be answered either by saying that the evidence which was accepted by the District Judge was clearly so closely similar to a letting out to hire of this unfortunate girl that it should be regarded as a disposal of her closely similar in character to the activities covered by the other phrases in the section, or else that it would be wrong to limit the meaning of the words "otherwise disposing of" by reference to the ejusdem generis rule since the clear intention of the Legislature was to make as wide a provision as possible for the prohibition of dealing with a female in any way for the purpose of prostitution.

11. Finally, and with more substance, it is said that the learned judge overlooked that fact that the appellant had never been shown to have used any force whatsoever against the girl throughout his association with this sorry affair. It is a point that has a certain ingenuity. Mr. Kwok referred us to a number of other sections in the Ordinance in which acts of various kinds are forbidden when accomplished by force, intimidation, fraud, threats, false pretences and the like and he asks us to say that the Legislature has been careful in section 25 to restrict the offence created by it to such circumstances only as involved the use of actual physical force. The Crown had not charged the accused or any of them with the forceful abduction of the complainant under that section and no doubt there was a good reason for not doing so. To prove a charge under that section the act of forcible abduction must be shown to have been done with the intention of causing the female to be carnally known by another person. Now it is fairly clear upon the evidence that that was not the actual purpose of the accused at the time of the complainant's abduction in this case. Then the whole intention could well be said to have been simply to exact from her some satisfactory promise of repayment. It was only after she had been so abducted that she was detained for the purpose of coercing her into prostitution in order to repay her debts. No doubt it was for this reason the Crown preferred to charge the accused with detention rather than abduction. Since, however, there was no evidence of actual physical violence used against the girl subsequent to the actual abduction, counsel asks us to say that no offence has been committed simply by detaining her. This submission was associated with a submission that the evidence was insufficient to show that she was coerced rather than persuaded to resort to prostitution but we were satisfied that the District Judge had come to the right conclusion in finding that she was detained against her will and forced through fear of her captors to submit to that life.

12. It may be that there is some substance in the suggestion that where abduction is charged something in the nature of actual physical violence must be proved together with the intention that the abduction is to result in reducing the person so abducted to a life of prostitution. Even if that be true, however, it is of no assistance to the appellant in the present case for we are satisfied that the phrase: "or detains against her will any female ..."in section 25 must be read disjunctively from the opening phrase: "an person who by force takes away ..." Actual physical force need not be shown in respect of the detention but it must be proved that the detention has been achieved by overbearing the will of the person detained by any means whatsoever. We are satisfied that the District Judge rightly formed the opinion that this girl was shepherded and guarded, watched and detained throughout the period between the 7th and 12th of November and that she only continued to perform the services to which she was applied during that time because she had no alternative and could not free herself from the custody of her captors. We have no doubt that the appellant was a party to her unlawful detention and fully shared in the intention of his associates that she should work as a prostitute for the gain of some of their number.

13. We do not think that the other matters raised upon the appeal call for comment and for the reasons given the appeal must be dismissed.

Representation:

(1) (1918) 1 K.B. 635.

(2) (1964) 1 Q.B.D. 357.

(3) (1968) H.K.L.R. 697.