The Queen v. Ma Siu Lung

HCMA001066/1986

BETWEEN

Coram: Roberts, C. J.

Date: 4 December 1986

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JUDGMENT

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1. This is an appeal by MA Siu-lung ("D. 1") against his conviction for living on the earnings of prostitution, contrary to Section 137(1) of the Crimes Ordinance.

2. According to the evidence of the main Prosecution witness, a 19-year-old girl, CHAN Lai-mi, she was introduced, about April of this year, to D1 by a man, whom she had previously known, called Bang Bang, with a view to borrowing money from D1.

3. The Prosecution really depends upon what took place at a meeting between the girl, D1, Bang Bang and a man named Szeto Wah, in the Chuk Yuen Sea Food Restaurant.

4. At this meeting, Dl agreed to lend $3,000 to the girl and told her that, in consideration of his doing so, she would have to work as a prostitute for ten days, and that she would have to take six customers a day. If she failed to work on any day, she would have to pay him $360 in cash in respect of that day. She took the $3,000, left the restaurant and had no further dealings with Dl.

5. On the following day, Bang Bang got in touch with her and gave her instructions as to how she was to operate under his supervision and management. She described how she worked as a prostitute for eight days receiving twenty odd customers, each of whom was introduced to her by Bang Bang. After each occasion, Bang Bang collected $180 from the customer, but she received none of it herself.

6. As the magistrate rightly said "The Crown case stood or fell on the evidence of the girl". He correctly warned himself that she was an accomplice, that corroboration was desirable, but that it was open to him, nevertheless, to convict on her uncorroborated evidence if he was satisfied of the truth of it, having given himself a proper warning of the dangers of doing so.

7. Having approached her evidence in this manner, he accepted her evidence as true, adding -

"I find that she did borrow the money from D1, on the basis that it was to be repaid, with interest, on the proceeds of prostitution; that she did engage in prostitution and that the proceeds were collected by Bang Bang who could only, have been D1's agent. D1 therefore lived at least in part on the earnings of her prostitution for the first period ... "

8. Mr. Plowman criticized this passage in the magistrate's findings in two respects.

9. Firstly, that the evidence of the meeting between the girl and D1 established that the girl was given a choice as to whether the loan was repaid from the proceeds of prostitution or in the form of cash in respect of any day in which she did not work as a prostitute.

10. Secondly in the magistrate's finding that Bang Bang could only have been D1's agent.

11. The conversation which took place, as reported by the girl, was to the effect that the way in which she was intended to repay this loan was by prostitution. Repayment of the loan by cash was an alternative given to her if she failed to repay by the primary method.

12. Her evidence is that, in furtherance of this agreement with Dl, she went to work as a prostitute. By those activities, a substantial sum of money was collected by Bang Bang.

13. If it is proved, as the magistrate found that it was, that Bang Bang was acting as Dl's agent and so receiving the money on behalf of his principal, D1, this, in my view, establishes sufficiently that Dl was living in part on the earnings of prostitution.

14. The fact that it was open to the girl to repay the whole or part of the loan by other methods appears to nee to be irrelevant, so long as D. 1 knew, as he surely must have done, that the girl was operating as a prostitute in pursuance of the loan agreement.

15. A finding that any part of the loan was repaid to D. 1 by virtue of prostitution, involves the drawing of an inference that Bang Bang was acting as D1's agent and that Bang Bang was receiving the proceeds of the girl's prostitution on behalf of D1.

16. It was suggested by Mr. Plowman that the later history of events might have entitled the magistrate to draw the inference that Bang Bang was operating on his own behalf and not on behalf of D1.

17. It seems to me that this is a fanciful inference to draw. On the first day, there is a meeting at which Dl lends the girl money, and tells her that she should repay it by prostitution. Bang Bang is present at that meeting. The following day, Bang Bang instructs her as to how the customers are to be found and how payment is to be made by them to him.

18. I agree with the magistrate that the irresistible inference from these facts is that, in making the arrangements for the working conditions of the girl and the collection of money from the customers, he was acting on behalf of D1.

19. Although, as the magistrate rightly says, there is no evidence of any receipt of money by D1, I agree with him that, taking into account the facts to which I have just referred, that also is an irresistible inference from them.

20. For these reasons, the appeal against conviction must be dismissed.

Sentence

21. This is an unpleasant offence and 1 can well understand the magistrate taking a serious view of it. Nevertheless, it has to be accepted, in favour of D1, that there was no evidence that this was part of a sustained reliance on the earnings of prostitution or more than an unpleasant way of recovering repayment of the debt.

22. D1 has a clear record and seems to have done his best to support his family in a responsible way.

23. I can derive some assistance from the views expressed in Attorney General v. Wong Shui-ying and Another⁽¹⁾. Not without hesitation, I am prepared to allow the appeal against sentence to the extent of substituting a sentence of 6 months' imprisonment for that of 9 months' imprisonment.

Representation:

Mr. Gary Plowman (M/S Li & Cheung) for the Appellant

Mr. Simon CHIU, S. C. C., for the Crown

(1) [1978] H. K. L. R. 184