HKSAR v. Lau Wan Ha

HCMA000930/2002

HCMA 930/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 930 OF 2002

(ON APPEAL FROM TMCC 2334/2002)

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Coram: Deputy High Court Judge Barnes in Court

Date of Hearing: 22 January 2003

Date of Judgment: 22 January 2003

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J U D G M E N T

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Introduction

1.The Appellant was convicted after trial of one charge of soliciting for an immoral purpose in a public place and sentenced to a fine of HK$2000.00. She appeals against both conviction and sentence.

Facts

2.The prosecution case was that PW1 (an undercover police) went to the Silver Lake Sauna on 6 July 2002 and he was taken to Room A where the Appellant attended him. The Appellant massaged PW1 and towards the end of the massage she solicited PW1 for masturbation. She masturbated PW1 for a short time before PW1 tactfully stopped her. The Appellant was arrested for the offence. The Appellant's version of simply massaging PW1 without more was not believed by the Magistrate.

Grounds of appeal

Re Conviction

3.The Appellant, being unrepresented, made oral submission as to the grounds of appeal. She told me when she appeared before the learned Magistrate it was her first court appearance. She said she was nervous and her mind had gone blank. She said she did not do the act complained. She said the learned Magistrate should not have believed the police officer in question. She complained about the fact that the learned Magistrate disbelieved her.

Re Sentence

4.During the Appellant's submission, it became clear that she was not appealing against the sentence at all. She accepted the fine of $2,000.00 was not heavy. She wanted to have the criminal record removed. She said she has a young daughter and the criminal conviction would hamper emigration. She complained that having a criminal record as a result of the conviction was "too heavy".

Response

5.I asked Ms Leung, counsel for the Respondent, to respond to the appeal against conviction only. Ms Leung in gist pointed out that the learned Magistrate had the opportunity to observe the witnesses while they were giving evidence in court. The learned Magistrate had given detailed reasons as to why he rejected the evidence of the Appellant. There is nothing to show that the learned Magistrate had erred in law or commit any irregularities. She said the appeal should not be allowed.

Judgment

6.It is clear to me that as far as the Appellant is concerned, the fact that she now has a criminal record was the main reason why she wanted to appeal against the conviction. A criminal record comes as a consequence of the conviction. There is no power in law not to record a criminal conviction.

7.The Appellant complained about the fact that the learned Magistrate did not believe her. The learned Magistrate did have the chance to hear and observe the witnesses while they were giving evidence in court. He had given detailed reasons as to why he rejected the Appellant's version and found that the prosecution had proved its case beyond a reasonable doubt. He was aware of the elements of the offence and the legal burden. There is nothing to show that the learned Magistrate had either erred in law or making findings not supported by evidence. I find no merits in the appeal. The appeal against conviction is dismissed.

8.As to the appeal against sentence, it is also clear that the Appellant was not complaining about the severity of the fine. The appeal against sentence is also dismissed.

Representation:

Ms Rosaline S Y Leung, SGC of the Department of Justice, for the Respondent

Lau Wan Ha, Appellant in person