The Queen v. Cheung Yuet Ping

HCMA000294/1991

HEADNOTE

Magistracy appeal - habitually in the company of a prostitute - meaning of "habitually" - bail pending appeal.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 294 OF 1991

___________

BETWEEN

___________

Coram: The Hon. Mr. Justice Sears in Court

Date of Hearing: 12 June 1991

Date of delivery of Judgment: 13 June 1991

___________

JUDGMENT

___________

1. This appeal raises an interesting point with regard to the provisions of section 137 of the Crimes Ordinance, Chapter 200. That section reads as follows:

"A man who knowingly lives wholly or in part on the earnings of prostitution shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 5 years.

(2) For the purposes of subsection (1), a man who lives with or is habitually in the company of a prostitute, or who exercises control, direction or influence over a woman's movements in a way which shall be presumed to be aiding, abetting or compelling her prostitution with others, shall be presumed to be knowingly living on the earnings of the prostitution, unless he proves the contrary."

2. The position therefore is that the prosecution may lead evidence which satisfies subsection (1) without having recourse to subsection (2). Subsection (2), however, provides an opportunity for the Crown to adduce prima facie evidence of certain matters and once they have done that, then the burden shifts to the defendant to show that he is not living on the earnings of prostitution.

3. The facts here fall into a relatively small compass, in that on the 4th of December 1990 police officers went to a flat in Lockhart Road, under what is called a general authorization, and found the defendant and a lady, who subsequently turned out to be the prostitute in question and who is also the defendant's wife, having dinner.

4. They returned later together with other police officers and during that time a police officer had entered the premises and it is quite clear had been offered the services of the prostitute. Certain marked bank notes had been given to the police officer and these bank notes were subsequently found on the defendant. That was the sum total of the Crown's evidence, which they said supported the charge of knowingly living wholly or in part on the earnings of prostitution.

5. The Crown, therefore, said that the presumption arose because this man fell within the category as set out in the subsection of habitually being in the company of a prostitute. The way the case was put in the Magistrate's Court was not that he was living with her - although they were man and wife, they were separated - nor that he was exercising control, etc. over her, but that he was habitually in her company. I fail to understand on that evidence how the magistrate could even have considered there was a case to answer. The incident which occurred took place within a few hours and the defendant had clearly been in her company because he had been having dinner with her during that time.

6. The magistrate, however, came to the view that this man was habitually in the company of a prostitute. He, therefore, said that the presumption arose and, having heard all of the evidence, disbelieved the defendant and convicted him.

7. The obligation which is on a magistrate when hearing these cases is, first of all, to satisfy himself that the Crown has put forward evidence which would justify him in coming to the conclusion that subsection (2) has been satisfied, namely, that the Crown must prove either that the man lived with a prostitute, or that he was habitually in her company, or that he exercised control,-one of these three matters if they wish to rely upon the presumption.

8. The word 'habitually' is not defined, but has been the subject of judicial comment in a decision in the Supreme Court of South Australia (Dias v. O'Sullivan (1949) SASR 195) where Mr. Justice Mayo, dealing with an offence of habitually consorting with reputed thieves, said, at page 200,

""Habitually" requires a continuance and permanence of some tendency, something that has developed into a propensity, that is present from day to day. A habit results from a condition of mind that has become stereotyped.  In terms of conduct its presence is demonstrated by the frequency of acts that by repetition have acquired the characteristic of being customary or usual; behaviour that is to be regarded as almost inevitable when the appropriate conditions are present."

9. In England there used to be an Act called the prevention of Crime Act 1908. If a person was shown to be a habitual criminal, certain consequences flowed. The courts, on a number of occasions had to consider the meaning of the word 'habitual criminal', and the Act itself provided certain matters, one being that the Crown could prove that the prisoner was persistently dishonest or leading persistently a dishonest or criminal life .

10. One of the provisions was that a person may be found to be a habitual criminal, if the jury should find on evidence that he had previously been convicted three times since he was sixteen years of age.

11. There is also a dictionary definition of the word "Habitual". In the Shorter English Dictionary is found, "of the nature of a habit; fixed by habit; constantly repeated; customary".

12. It is clear in my judgment, therefore, that if the Crown wish to rely upon the provision of this subsection with regard to habitually being "in the company of a prostitute", they must lead evidence before the magistrate that, indeed, the man had habitually been in her company. This might take the form of observation over a period of time. It might take the form of admissions given to a police officer by a defendant, or a variety of facts which demonstrate that the defendant in question was habitually in the company of a prostitute.

13. Although in my judgment a submission of no case should have been made, the magistrate was under a duty to consider at the close of the prosecution case whether there was prima facie evidence, which satisfied subsection (2). I cannot find such evidence. What the magistrate appears to have done is to have continued with the case and to have utilized the evidence of the defendant as proving the case of the prosecution on this first limb of the matter.

14. The magistrate said this:

"The first issue I have found that the court had to decide is whether the presumption should be applied."

15. He then sets out five matters from the evidence of the defendant. This is misplacing the burden of proof. There is no burden on a defendant to disprove that he is habitually in the company of a prostitute. The prosectuion must prove that aspect. The only burden on the defendant is to prove on the balance of probabilities, that he was not living on her immoral earnings, and that only arises once the magistrate is satisfied that the presumption bites.

16. Having regard to the evidence which was called, there was no evidence here that this man was habitually in the company of a prostitute. He was on that night in her company and it was clear byond any doubt, bu virtue of the finding of the marked money, that he was in some way connected with her prostitution, but the Crown cannot put forward general evidence in the hope of securing a conviction.

17. In my judgment, there was no evidence before this magistrate sufficient to satisfy that part of subsection (2) and he should have stopped the trial at the close of the prosecution case.

18. Might I add this - the magistrate concerned, Mr. Brazier, sitting at Central Magistracy, at the conclusion of the case, the defendant being represented by an experienced solicitor, had found that he was guilty and an application was made for bail pending appeal; he was told, as is the position factually, that appeals against conviction do take a long time to come on. The magistrate said this: "Are there merits to appeal?" "Well, court heard no grounds. Court found clearly the presumptions arose and had no doubt that the defendant was living on immoral earnings."

19. Magistrates should not be sensitive to the fact that their decisions are appealed. All persons who hold judicial office, whatever their particular position, must recognize that although they consider their decisions are right, nevertheless, on many occasions, their decisions are wrong and the appellate procedure is part and parcel of our system of justice.

20. In my judgment, this magistrate was wrong not to grant bail on a matter such as this, and as I have said, his consideration of the law was in error. The position, therefore, is that this defendant has had to spend six weeks in custody before a High Court judge allowed him bail. I hope magistrates will bear in mind that they are not to refuse an application for bail pending appeal unless indeed a proper ground is put forward, such as that the defendant would not appear to prosecute his appeal, alternatively that it is a frivolous matter where there is no merit whatsoever, but this was a strongly disputed case and I see no reason for this magistrate to take a view which as I have said has subsequently led to a man, against whom I have found that there was no evidence at all, being kept in custody for six weeks.

21. This appeal against conviction is allowed.