HKSAR v. Tong Kam Wai

CACC000358/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 358
(Criminal)

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Coram: Hon Nazareth Atg CJHC, Mayo and Stuart Moore JJA in Court

Date of Hearing: 29 January 1999

Date of Judgment: 29 January 1999

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J U D G M E N T

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Nazareth Atg CJHC (giving the judgment of the Court) :

1. The applicant was on 24 June 1998 found guilty after a trial by His Honour Judge Christie in the District Court of one offence of living on the earnings of prostitution others, which is count 2, and six counts of blackmail. He was sentenced to terms of 2 years imprisonment on count 2 and one of the counts of blackmail, and on the remaining charges of blackmail, he was sentenced to 3 years on each count. The 3 year terms were ordered to run consecutively to the 2 year terms, resulting to a total of 5 years imprisonment. He now seeks leave to appeal against both conviction and sentence.

2. The particulars of count 2, i.e. living on the earnings of prostitution of others was that between December 1996 and November 1997 in Hong Kong he knowingly lived wholly or in part on the earning of prostitution of one Kwong Yee-kiu (PW1).

3. The other six charges followed the same pattern. Count 3 was in the following terms: That the applicant on or about 17 September 1997 at Flat G, 13th Floor, Tsing Yi Garden in Kwai Chung, with a view to gaining for himself made an unwarranted demand of $7,000 from the victim. The other charges were in the same form. The victims were different. The amount demanded ranged between $1,000 and $8,000 and the dates between 15 October 1997 and 9 November 1997.

4. The principal witness against the applicant was PW1. She gave evidence that she followed the applicant for some 12 months and made visits to customers at his direction. She received money from customers before sexual services were provided by her. Afterwards she paid most of the money to the applicant, having taken her own share, and also some to meet some loan payments she was obliged to make. She identified the applicant. She gave evidence that she opened a bank account at the request of the applicant and gave the bank-card and the PIN number to him so that the account was controlled by him. Bank records produced showed that the bank account was opened by her at the time she claimed. She said that she used a mobile phone provided by the applicant to get instructions from him as to where to go and to make calls back to him from the customer's place. This phone featured in some of the blackmail charges in that she claimed she used it to call him back from the customer's place.

5. The general way in which these offences were carried out was the same. Customers saw advertisements in magazines for sexual services. They telephoned a number. They negotiated the price and came to terms with a male person on the phone. They gave him the address and PW1 turned up. She was paid, provided sexual services, then immediately made a telephone call on her mobile phone and passed the phone to the customer whereupon demands would be made for additional sums ranging from $1,000 to $8,000 with threats of beatings, wrecking the flat and so forth. The various victims all paid. The matter came to light when the police set up voice recording and videoing facilities. A police officer telephoned a number advertised to which PW1 responded. What thereafter happened was recorded.

6. It is necessary to briefly touch on the particular blackmail charges. The victim in charge 3 gave evidence that he answered the call offering a girl. He agreed to a price. PW1 appeared. The services were provided. After that, PW1 made a telephone call, passed the phone to the victim. He heard a male person who demanded $7,000 and made threats to have him beaten up. He paid $700 more at the scene. He was told by the voice to pay more and for that purpose he was given a bank account. The bank account was PW1's bank account.

7. Charges 4 and 5 were concerned with the attempted blackmail of an undercover officer. This was the trap the police set up. The detective police constable, PW6, ordered a girl from an advertised telephone number. PW1 arrived. The police constable then rejected her which led to telephone conversations on the mobile phone with a male person. There was a dispute as to how much money was to be paid, demands and threats were then made, all of which were recorded on the tapes. Later, further demands were made to the police officer. These tapes were played at the trial. PW1 identified them again in court.

8. Charge 6 followed the same pattern. The amount demanded there was a total of $8,000. It was paid. The bank account records showed that shortly after these payments were made they were drawn out in sums of $6,000 and $2,000.

9. Charge 8 also followed the general pattern but this time after being paid the fees, PW1 did not provide sexual services. She went into the bathroom and remained there for so long that the victim gave up and left. But he had already divulged his mobile phone number and received demands.

10. The last charge also followed the same pattern but the victim was a boy of 17 years of age. Understandably he succumbed to the threats and paid $4,700 into the same account.

11. It is convenient at this point to turn to the grounds on which the applicant relies. He submitted a written notice of appeal in which he included his written grounds which ran to six pages. The first part concerns his request for legal aid. His application was rejected by the Director of Legal Aid. It was renewed before us. We were satisfied there was no good reason for ordering it in the case before us and refuse the application.

12. Turning to his grounds, he submits, first of all, that the judge failed to have proper regard to the credibility of Kwong. He states that the judge failed to realise that she was a tainted witness who had been in the prostitution business for nearly 10 years. She had a criminal record, he says. Moreover, he submits that she also had a motive to lie in that she owed him money and if she succeeded in the charges she would not have him convicted but avoided repaying the money.

13. There is nothing in this ground. The judge went to great length in addressing the credibility of Kwong. He mentioned that she was a prostitute, that she was not a witness of good character, she was a drug addict as well, that she had been given immunity at an early time and that great care was needed in considering her evidence. He mentioned that twice, first at an early stage in addressing her evidence and then again when coming to his conclusion. He carefully considered whether there were any discrepancies between her evidence and that of the victims, noting that it was consistent almost throughout and where there were discrepancies, that they did not affect the substance of her evidence. Given the care with which the judge addressed her evidence and his reasons for accepting it, we have no difficulty in rejecting the applicant's complaints on this point.

14. The applicant's next ground was that nothing in the circumstantial or corroborative evidence, as he put it, provided direct proof that he was connected to the matter. He complains in particular that there was no voice expert to prove that the voice on the tape was his. This was also an aspect that the judge addressed with care. The connection of the applicant with the transactions was primarily established by a bank card relating to the account to which the money went. This was found in his possession on his arrest. Apart from this, the judge also relied upon his own finding of credibility, and the consistency of the taped evidence with PW1's version.

15. Giving due consideration to those matters, it can be seen that there are no good reasons for doubting the judge's conclusion on the convictions.

16. As regards sentence, the applicant says that while he is not familiar with the maximum in the sentencing guideline for offences of this nature, his case only involved verbal intimidation and exploiting female bodies for sexual transactions with no real use of force or injury to the other parties, and no medical evidence of injury. That may well be so. Nonetheless, this was a very serious series of offences, well thought out, organised and carried out over a protracted period with the applicant remaining well back in the background. He also submits that there were two other cases in which lighter sentences were handed out. We do not find ourselves assisted by those cases. The fact that other persons convicted of blackmail offences received lighter sentences is nothing to the point. The circumstances can be readily seen to be different.

17. At the end of the day, one has to address the question of whether the sentences were manifestly excessive. Given the nature of the offences, their number, and the period of time of which they were carried out, we find no reason to regard the sentences as manifestly excessive. We accordingly refuse leave to appeal against conviction and sentences.

18. We administered a warning before we commenced hearing the applicant on his application. Clearly from what we have said, there was no merit whatever in his application. Accordingly we order three months to be disallowed from his sentences. In the result, he will serve three months extra.

Representation:

Mr P.S. Chapman, SADPP (DPP) for the Respondent

Applicant in person