Attorney General v. Au Man

Case No.CACC 345/1969

Court

Court of Appeal

Date17 Jul 1969

Judge—

Case Document

100%Judiciary

CACC000345/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.345 OF 1969

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BETWEEN
	The Attorney General	Appellant
	AND
	Au Man	Respondent

Coram: Williams, J.

Date of Judgment: 17 July 1969

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JUDGMENT

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1. The respondent accused was charged before a magistrate for soliciting Ling Sin-pang for an immoral purpose. The magistrate acquitted the accused at the close of the prosecution case without calling upon the accused, following a submission by his solicitor Mr. Comber, that there was no case for him to answer.

2. The Crown thereupon requested the magistrate to state a case.

3. The material evidence for the prosecution was given by Ling Sin-pang who said he visited an apartment house where he was met by the respondent who asked if he wanted a girl very cheap. He said that the respondent indicated that the price for the room was $6.60 and there would be a further $25 for a girl for sexual intercourse. The witness agreed and handed over $10 whereupon the respondent brought a girl who went to a room with the witness and removed her clothing and invited him to have sexual intercourse. The $25 was to be paid to the appellant after sexual intercourse.

4. Whilst Ling Sin-pang (who is a constable) was with the alleged prostitute, Police Inspector Chow and Woman Police Officer Leung entered the apartment house and saw the respondent behind a counter. They entered a room and saw Ling in his underpants with a naked female.

5. If that evidence is reliable then there would be abundant proof of soliciting.

6. In his judgment the magistrate said that following Mr. Comber's cross-examination of P.W.1 the evidence adduced is so manifestly unreliable that no reasonable tribunal would convict. It is not apparent what the magistrate meant to convey by that observation. He does not say that the witness Ling proved unreliable, or that the evidence if believed fell short of that required to prove the offence. The cross-examination by Mr. Comber did not cause witness Ling to contradict himself or to retract anything that he had said. The magistrate obviously accepted the evidence that Ling was found in his underpants with a naked female which indicates that witness Ling's evidence was reliable in that respect. One is left wondering why, in those circumstances, the magistrate should have felt that that part of the witness Ling's evidence relating to the soliciting was manifestly unreliable.

7. In his case stated the magistrate said nothing to explain that approach. On the contrary his observations tended to leave one with a feeling that his approach was confused. Thus, in his case stated, he observed on more than one occasion that he had acquitted the accused with the benefit of the doubt. If that is correct it would suggest that he had found a case to answer, and on the defence tendering no evidence he had given the respondent the benefit of some doubt which appeared on a consideration of the evidence.

8. At p.6 he refers to an absence of corroboration as to what transpired between witness Ling and the respondent. At p.7 he said that whereas witness Ling's version of what happened between the prostitute and him was corroborated by the police inspector and the woman police constable, there was no corroboration of what took place between him and the respondent in relation to the allegation of soliciting. At p.8 he makes a similar reference by saying that the prostitute did not witness any arrangement or discussions between the respondent and witness Ling. At p.9 he makes a similar reference.

9. I do not understand why at that stage the magistrate was searching for corroboration of witness Ling's evidence that the respondent was soliciting. There was no other evidence conflicting with that of witness Ling.

10. At the foot of p.8 he said:

"There was some evidence that the 1st defendant (appellant) would find a girl to have sexual intercourse with P.W.1 (Ling) at a price of $25 - and that there was some evidence that the 2nd defendant was brought into Room 14, but apart from the 1st defendant's (appellant's) question (Do you like the girl?' and P.W.1's reply 'yes' there was a gap in the evidence, which the court was not justified in bridging by reading into the evidence that the 2nd defendant (prostitute in question) was the girl meant to be the girl for sexual intercourse ......".

11. With respect to the learned magistrate I find those observations difficult to follow. I fail to see a gap in the evidence. The events were related in evidence in a logical sequence and there was nothing left unexplained.

12. The magistrate poses the question, for consideration of the appellate court, whether he came to a correct determination and decision in point of law.

13. It would seem that he was purporting to give the accused the benefit of the doubt before he had reached a stage of the proceedings where it was permissible to do so. Therefore the answer to the question posed is "no".

14. The ruling in the lower court is set aside and the case is sent back for trial de novo. In all the circumstances it would be better that the fresh trial take place before another magistrate.

	(J.T. Williams)
	Puisne Judge.

Representation:

Judgment handed down.

Stratton D.P.P. for Crown comber for Respondent.