The Queen v. Siu Wai Yin

HCMA000956/1989

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 956 of 1989

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BETWEEN

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Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearings: 5 & 6 September 1989

Date of Judgment on Appeal Against Conviction: 5 September 1989

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J U D G M E N T

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1. The Appellant was convicted after trial on 2 charges of living on the earnings of prostitution, an offence under Section 137(1) of the Crimes Ordinance, Cap. 200.

2. The prosecution evidence was that two under cover police officers went to the Great Duke Bar and Night Club in Kimberley Road at about 7.20 p.m. on the 5th of January 1989. On arrival the Appellant met them and took them to a table. There he suggested introducing girls to them, and eventually said that it would cost about $150 to escort the girls out of the premises and $300-$400 to have the girls there indulge in acts of prostitution. (I use the phrase "acts of prostitution" as a decorous substitute for the slang terms used by the Appellant). The officers indicated that they were interested and the Appellant left and returned with two girls. The officers paid their bill and took the girls to an apartment nearby where the girls offered sexual intercourse for reward.

3. The Appellant's evidence was that although he introduced girls to customers at the premises he had not had a discussion with the officers about arrangements for sexual intercourse. He called one of the girls to give evidence. She said that although there had been sexual conduct between her and one of officers, it was not a commercial arrangement but an act in which she indulged out of sheer curiosity because the officer was a foreigner and she had not made love with a foreigner before. Her sexual conduct, she said, was not an act of prostitution but, in effect, an amateur's experiment in the realm of the unknown.

4. The learned magistrate, who has presided over courts at South Kowloon Magistracy for many years, found himself unable to accept the defence evidence directed at proving the absence of arrangements for prostitution on the part of the Appellant and convicted him on both charges.

5. In his appeal against the convictions, the Appellant contends that they were unsafe and/or unsatisfactory because of 5 specific grounds of complaint.

6. By ground 1, he complains that the learned magistrate erred in applying the wrong test of procuring when deciding the guilt or innocence of the Appellant on both charges. In his reasons for verdict, given at the time he announced his verdicts, the learned magistrate said:-

"Quite simply, in doing what he did was that defendant procuring the girls? His admissions are not too far off the police allegations."

7. Mr. Cheng submits that through repeated references to procuring the girls and repeated references to the role of the Appellant as that of a pimp, the learner magistrate disclosed that he was adopting the wrong approach in deciding whether the evidence established the commission of the offences alleged against the Appellant.

8. In my view, the learned magistrate was not using the word "procure" in the same sense in which it is used in describing the offence dealt with in the R. v. Broadfoot (1977) 64 Cr. App. R. 71, to which Mr. Cheng for the Appellant referred me. The learned magistrate's usage was as a synonym for get, obtain, produce, or arrange, the same as the usages in such sentences as "(A) was able to procure employment as a garment worker" or "(B) undertook to procure for me a book which is not available in Hong Kong". There is, in fact, a sentence in the magistrate's statement of findings where he says that the Appellant went to procure that is to get or obtain the bill for the undercover agents. It is, I think, clear from the context of his remarks that he meant that the Appellant was offering to get prostitutes for the undercover agents. I, accordingly, see no substance in this ground of complaint.

9. The second ground contends that the learned magistrate failed to deal adequately with the presumption under Section 137(2) of the Crimes Ordinance when purporting to invoice that presumption. The presumption under Section 137(2) of Cap. 200 is that a man who exercise control, direction or influence over a woman's movements in a way which shows that he is aiding, abetting or compelling her prostituion with others, is presumed to be knowingly living on the earnings of prostitution unless he proves the contrary.

10. Here there was evidence which the learned magistrate accepted to the effect that the Appellant did exercise direction over the girls movements in a way which showed that he was aiding their prostitution. He accepted the Appellant's admission that he went to get the girls so he accepted that the girls went to the officers as a result of the Appellant's directions. He accepted the officers' evidence that the Appellant offered to get girls for the purpose of prostitution. The effect of that was that the magistrate accepted the evidence that the Appellant did exercise direction over the girls' movements in a way which showed he was aiding their prostitution. Having accepted that, and having rejected the Appellant's denial of aiding prostitution the magistrate, in effect, found that the presumption applied and was unrebutted. He was, therefore, bound by law to find that it had been proved that the Appellant was living on the earnings of prostitution.

11. Mr. Cheng complains that the learned magistrate did not spell out the way in which he found the presumption to be established. It is true that in five pages of his statement of findings, the learned magistrate mentions the presumption in only two places. It is also true that he does not spell out exactly what facts he found to have been proved to raise the presumption. However, on the evidence which he clearly accepted it is quite clear that facts were proved, which did raise the presumption. It seems to me therefore that the learned magistrate did deal adequately with the presumption by showing that he (a) accepted evidence which raised it and (b) rejected the only evidence, which could have rebutted it.

12. The third ground contends that the evidence was insufficient to prove that the appellant knowingly lived on the earnings of the two varied women. In support of this ground, Mr. Cheng drew my attention to the decision in Ansell (1974), 60 Cr. App. R. 45, where it was held that to prove a charge such as this, the prosecution must prove that the Defendant was closely connected with the exercise of direction of the prostitutes. In that case, the Defendant provided a facility through which men could make contact with prostitutes but he did not direct the prostitutes to clients. It vas held that that was insufficient to show the close connection with direction of the prostitutes necessary to support a conviction on such a charge as this. Here, there was a close connection - the Appellant actually took the prostitutes to the clients for the purpose of arranging prostitution.

13. Ground 4 contends that the learned magistrate failed to evaluate the evidence of the defence in a judicial manner and that, alternatively, he did not give the appearance of having faily assessed that evidence. All that needs to, be said about this complaint is that the more implausible a story is the less there needs to be said to justify rejection of it. The defence case was so implausible as to be completely unacceptable, as the learned magistrate put it, "to any Hong Kong juryman". That was a sound evaluation of it which appears to me to be a fair assessment of it as well.

14. Ground 5 asserts that certain findings of fact were not supported by the evidence. The answer to that is that the findings of fact necessary to raise the presumption were supported by the evidence. That unrebutted presumption added to other unchallenged findings supported findings of guilt.

15. There is no ground on which I could hold any of the convictions to be unsafe or unsatisfactory so the appeal must be dismissed.

Representation:

Mr. Chung Huan QC leading Mr. Bernard Chung inst. by Yaddy Cheung & Co for Appellant.

Mr. Steve Chui, Sr. C.C. for Crown/Respondent.