Wong Kwai Ping v. The Queen

CACC000311/1977

Coram: Trainor, J.

Date of Judgment: 26th May, 1977.

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JUDGMENT

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1. This is an appeal against a conviction for being the keeper of premises used as a lodging house for prostitutes, and a fine of $1,000.

2. On the appeal coming on for hearing Mr. Sharwood, who appeared for the Crown, sought to amend the charge, and, therefore, the conviction by the substitution of "brothel" for "lodging-house" in the charge on the grounds that the evidence, would more properly support a charge that the premises in question were used as a brothel, as defined in the Ordinance, than the charge that they were used as a lodging-house. This was a matter to which the learned magistrate in his very complete and carefully reasoned judgment had adverted but considered, with some hesitation, that the definition of "lodging-house" in the Ordinance was wide enough to cover the facts and circumstances of the case. Mr. Li for the appellant opposed the amendment.

3. In my opinion the definition was not wide enough. I considered, however, that the evidence adduced did warrant the amendment and that no possible injustice could be done were I to allow it as each ground of appeal raised could as validly be argued against the conviction were the application to be granted. I allowed the amendment, and as Mr. Li did not consider an adjournment necessary the appeal proceeded on the amended charge.

4. The case in the court below was dealt with in a somewhat unusual way. The prosecution had prepared a document headed Brief Facts of the Case. The document was such as is read to a court when an accused pleads guilty. It recited the activities of a number of police officers on the night of the 26th November last, and at the outset of the trial Mr. Cheng the solicitor who appeared for, inter alia, the appellant agreed to its admission pursuant to the provisions of Section 650 of the Criminal Procedure Ordinance. He further consented to the admission of certain exhibits and a statement made by the appellant, as well as statements made by a number of ladies who were charged with aiding and abetting the appellant. Despite the admission of the Brief Facts the prosecution presented the various police officers referred to in it for cross examination. The admitted documents, exhibits and the very brief cross examination of the police officers comprised the entire evidence. The agreed Brief Facts may be summarised as follows:-

5. In the statement he made the appellant said he was usher and cashier with the Universal Tour Company, which I understand is the English translation of "Wan Kau Tourist Company". He said his duties, which extended from 9 p.m. to 3 a.m. were to show customers to a sitting room and if a customer did not have "a familiar girl" he would introduce a girl to him. If a customer wanted to leave the premises with a girl, "buying hours", he would receive the fee and record its receipt for his employer's information. The fee, he said, was $36 of which the girl received $16 and his employer $20. He was asked:

6. In his Statement of Findings the learned Magistrate said that after reviewing the whole of the admissible evidence against the appellant he was satisfied beyond reasonable doubt (inter alia): "That during the Big Hour while the females were absent from the premises in the company of the customers they might go walking, chatting, go for tea or coffee or go to an apartment for sexual intercourse. Each of the female defendants ... offered to have sexual intercourse on the payment of a fee. That if sexual intercourse occurred with the respective customers of the tourist company it took place at various apartment houses after the parties had left the tourist company's premises". Later, having referred to the appellant's statement he said: "So the appellant's statement amounted to a denial of actual knowledge. When I took that evidence into account against the established fact that each of the female employees had within minutes of leaving the Percival Street premises invited the customers to have sexual intercourse with them at a price, I considered that it was fanciful to infer that the appellant did not know that intercourse normally took place during the period his employees were absent for a 'Big Hour'. On the whole of the evidence admissible against the appellant I was satisfied beyond reasonable doubt that the only reasonable inference from the facts was that the appellant knew the females were prostitutes and that when they were hired out by him for the Big Hour one of the purposes was to give the females the opportunity to offer to have intercourse with the customers upon payment of a fee. I held therefore that mens rea had been established."

7. Lack of evidence of mens rea was the principle ground on which Mr. Li argued the appeal. He contended that the last passage I have quoted from the Magistrate's Statement of Findings showed that the Magistrate had drawn inferences in circumstances which did not permit of inferences being drawn. He said that there was evidence before the Magistrate in two forms: (1) The agreed facts as presented by virtue of section 650 of the Criminal Procedure Ordinance; and (2) the oral evidence given in cross examination of the police officers. The first of those is divisible into the Brief Facts of the Case and the statement of the appellant, and Mr. Li contended that the Magistrate drew inferences from the Brief Facts but that the whole of the evidence, including the statement was as consistent with innocence as otherwise.

8. Not surprisingly Mr. Li relied heavily on a decision of the Full Court in the case of R. v. Kwan and anr., 1973 H.K.L.R. 335 in which it was held, inter alia,: "3. Formal admissions of fact under Section 65C(1) of Cap. 221 having been agreed between the prosecution and the defence, and the Court having acquiesced in the trial proceeding upon the basis of those facts, there was no room for inference, and the agreed facts were exclusive and binding".

9. In that case the evidence in respect of the first appellant was contained wholly in an agreed statement of facts, and the instant case differs from it only in that there was in addition a statement of the appellant and the cross examination of the police officers. Mr. Li cited a passage from the judgment of the Court:

" The learned judge, like any judge acting as judge and jury, was conditioned to a frame of mind in which inferences of facts, for or against an accused, can properly be drawn. What he overlooked when he came to consider his findings in the present case was that, the facts having been agreed between the prosecution and the defence and the court having acquiesced in the trial proceeding upon the basis of those facts, no room was left for inference. He was shackled. The Crown had hamstrung itself by agreed facts - and the judge had agreed to proceed upon the basis of those facts. Could he have done otherwise is, as we have said, a matter we reserve for future consideration - should the crown ever get itself into this position again. In the meantime, the learned judge agreed to what he agreed and we, like him, are bound by his decision in that respect. Thus, there is no room for inference and the agreed facts, as far as the first appellant is concerned, are exclusive and binding.";

and said that was the position in this case, the insignificant evidence given in cross-examination did not make any difference. He contended that if the Crown had wished to leave the freedom of a magistrate as a judge of fact to draw inferences from the facts he found then it should have established those facts by oral evidence; but once the Crown, like the appellant, admitted facts it was bound by the facts admitted and the freedom of the magistrate to draw inferences was gone. Rhetorically Mr. Li asked "Why should one iota of additional evidence make all the difference?"

10. Mr. Sharwood argued that the Kwan case differed from the instant case in that in the Kwan case the Crown having admitted the facts invited the Court to come to a conclusion not based on those facts. The result was, he said, that the judge "flew in the face of the facts".

11. Mr. Sharwood as I understand him would contend that the statement of the appellant could not be considered in the same way as the agreed Brief Facts. His contention was that the statement, although it might appear to have been admitted under section 65C, and, therefore, an admission by the Crown that it accepted everything in it as a fact, such was not the case. He contended that all that happened was that the appellant consented to the admission of the statement without formal proof and admitted its contents, while the Crown merely conceded that the statement was made and accepted that by reason of the appellant's admission it was relieved from formally proving the statement. He submitted that there were many things admitted by the appellant in the statement, e.g., that he was the introducer of the girls to customers and collected the money for Big Hours, and the magistrate was entitled to consider the statement as any other piece of evidence and draw inferences from it. He did concede that were the statement admitted pursuant to section 65C in the same way as the Brief Facts then it is an admission by the Crown that everything is true and the Crown is bound by it and the appeal must succeed.

12. What then was the position of the statement in this case?

13. The best way to answer that question is to go back to first principles. Of those the obvious one is that in a criminal case everything necessary to establish guilt must be proved. Even if an accused who has pleaded not guilty is prepared to admit certain facts the Crown must still prove those facts, and that applies to a statement made by the accused. Legislation in the form of section 65C of the Criminal Procedure Code has been enacted to permit of facts being admitted, for admissions to be accepted by the Court as establishing those facts, without the necessity of formal proof. This is a departure from the normal procedure and those admissions are only admissible by virtue of the legislation. When, therefore, the Magistrate in the Court below admitted the statement of the appellant he could only do so pursuant to section 65C. Section 65C(1) reads:

" Subject to the provisions of this section, any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceeding by or on behalf of the prosecutor or defendant and the admission of any such fact under this section shall as against that party be conclusive evidence in those proceedings of the fact admitted".

14. Mens rea was an essential element of the charge against the appellant. The Crown was obliged to prove it and the appellant was entitled to produce evidence to show that it was absent or its existence doubtful. When, therefore, the Crown accepted that the admission of the statement relieved it of proving the statement it also accepted all the contents of the statement and thereby relieved the appellant of the necessity of giving evidence of what he alleged in the statement, that he was unaware of what the girls did after they left the premises, and therefore had not the necessary guilty knowledge. After all had the learned Magistrate heard the appellant in the witness box he might have concluded that the appellant was as pure minded as a new born babe, but he was deprived of that opportunity by the Crown consenting to the statement being admitted without formal proof. Had the statement been proved then the self serving portions of it would have been to no avail to the appellant, and the Magistrate would have had to decide the case on all the evidence, including such evidence as the appellant might have given. In such circumstances he would have been free to consider the veracity and reliability of all the evidence and draw such inferences and conclusions as he considered might properly be drawn from the facts established. In this case he was deprived of that freedom, he was shackled, and could only rely on what was before him on paper. In my opinion the statement had to be considered in exactly the same way as the Brief Facts and the Magistrate was precluded from questioning the veracity or reliability of the contents of the documents and from drawing inferences.

15. It is difficult to understand why the prosecution offered the police witnesses for cross examination when the facts were admitted, and even more difficult to understand why the offer was accepted; and an interesting situation might have arisen had the witnesses given evidence adverse to the appellant. As it was anything they said, if of any significance at all, was favourable to the appellant's case.

16. As the Magistrate decided the case on admitted facts and as the appellant denied knowledge of the girls sexual activities outside the premises that must be accepted as correct. I allow the appeal and the fine if already paid and any exhibits belonging to him must be returned to the appellant.

Representation:

Mr. Andrew LI (Johnny T.K. Cheng & Co.) for appellant.

Mr. Sharwood, S.C.C. for respondent.