R. v. Lam Wai

CACC000284/1996

IN THE COURT OF APPEAL

1996, No. 284
(Criminal)

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Coram: Hon Nazareth, V.-P., Mayo, J.A. and Seagroatt, J.

Date of Hearing: 5 September 1996

Date of Judgment: 5 September 1996

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J U D G M E N T

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Nazareth, V.-P. (giving the judgment of the Court) :

1. The applicant, Lam Wai, was convicted on 29th April 1996 by Deputy Judge Yuen in the District Court on three charges. First, keeping a vice establishment contrary to s.139(1)(a) of the Crimes Ordinance, Cap. 200. Second, living on the earnings of a prostitute, contrary to s. 137(1) of the Crimes Ordinance, and third, assisting unauthorised entrants to remain in Hong Kong, contrary to s. 37DA(1) of the Immigration Ordinance, Cap. 115. He was sentenced to 2 years imprisonment on each charge, to run concurrently. He now applies for leave to appeal against conviction.

2. In his written notice of application for leave he gave four grounds as follows:

(1) that there were doubts concerning this case;

(2) that prosecution witnesses were not accepted (presumably he meant the evidence of the prosecution witnesses was not accepted);

(3) that the police did not handle the case in accordance with the law; and

(4) that the exhibits were not relevant to this case.

3. Even allowing for the fact that he is a mini-bus driver who apparently left school at the age of 13 and went to work in a factory, those grounds, it has to be said, disclose nothing of substance. I shall return to them because before us today he has given his version of what he says happened. How his friend Lai Wai-fat persuaded him to work for him which resulted in his working at the premises in question between the end of May and 10th July 1995. He says he never received any fashion orders for which he was recruited, he did not receive any work and left on 5th July. That in fact was his defence at his trial, that he had given up his involvement in the premises in which the business was carried on some 10 days before the police raided it. He said that however he had a bunch of keys with him and that he went back to the premises on the day in question really to return them to Lai and to get his wages. Lai did not turn up and that was why he happened to go back into the premises and later to the restaurant where he was arrested.

4. With reference to his first ground, he then went on to detail some six "doubts". First of all, he mentioned the bunch of keys he had - I have already outlined his explanation on that. He then says one of the visiting cards found in his possession had a totally innocent explanation in that it was given to one of the other two persons by PW1. The other card was only a single card given to him by Lai. His third point was that PW1 had never said he saw him at the premises. His fourth point was that PW3, a prostitute, who had worked at the premises for 1-2 weeks could not remember the correct details and he thought she had given evidence under pressure. His fifth point was that PW4, a constable, agreed that he was not the "target person". The sixth point concerned the visiting card I have already mentioned.

5. None of these points in any way undermines the judge's careful judgment. The evidence clearly showed that these premises were being used for the purpose of prostitution in which context sex was provided for payment on the premises. The real question was whether the applicant was involved. There was evidence which, if accepted, clearly showed the applicant's involvement in the matters which formed the subject matter of all three counts. The judge accepted that evidence. In her careful judgment, she went to the trouble of listing the gist of the evidence of most of the prosecution witnesses. She then proceeded to address each of the counts separately. She was satisfied that all three charges were established. We can see nothing in what the applicant has said, or the material before us, that undermines or detracts from her reasoning or conclusions. Indeed, quite apart from the evidence upon which she focused, if one looks at the cautioned statement of the applicant, which she accepted the applicant had made voluntarily after a voir dire, there are very clear admissions relating to the three offences.

6. As we have said at the end of the day, we can see nothing that undermines the judge's conclusions which seem to us to be right. There is nothing in the applicant's grounds. The application is refused.

Representation:

Applicant in person

Mr D.G. Saw (S.A.C.P.) for Crown/Respondent