The Queen v. Fong Sau Shan

CACC000379/1990

----------

Coram: Silke, V.-P., Fuad, V.-P. & Penlington, J.A.

Date of Hearing: 2 January 1991

Date of Judgment: 2 January 1991

-----------------

JUDGMENT

-----------------

Fuad, V.-P. (giving the judgment of the Court):

1. On 20th July 1990 the applicant, Fong Sau Shan, who is aged about 31, was convicted of the following offences by Judge Roy in the District Court after a trial:

2. The applicant was acquitted of two further charges of having unlawful sexual intercourse with victim 1. He was sentenced to various terms of imprisonment, all ordered to run concurrently, totalling 15 months. He seeks leave to appeal against his convictions.

3. At the time the offences were committed, victim 1 was aged 15 years and 7 months and victim 2 was aged 14 years and 1 month.

4. I take the facts from the judge's admirably clear Reasons for Verdict. Both the girls had run away from their respective homes and had been listed as missing persons. Victim 2 was introduced by some friends to the applicant in March 1989 and went to live with him in his flat in Nam Cheong Street, Kowloon. The flat was shared by two of the applicant's friends (D2 and D3) who also faced some charges before Judge Roy. Victim 2 was found by the police and returned to her home but she absconded again and returned to live with the applicant. By this time it was the beginning of May and her friend, victim l also moved into the same flat.

5. The applicant owned another flat on Lamma Island and visited it from time to time accompanied by one or other of the girls; sometimes he went there with both girls.

6. On 15th June 1989 the two girls were taken to a flat in Triangle Street, wanchai which had been rented by another man (D1). The judge said that the evidence had clearly established that the flat was used subsequently as a vice establishment. He summarised the Crown's case as being that the girls were detained there against their will and made to work as prostitutes receiving customers sent to them by D1 and/or the applicant. D2, the applicant and another man (D5) also lived in the flat. The flat was always kept locked and one of the accused men always went with the girls whenever one of them left the premises.

7. This regime came to an end when victim 1 managed to telephone her relatives. She then attempted to escape from the flat by climbing out of a window. She fell from the 9th floor to the podium on the 1st floor. Fortunately an awning and some mattresses broke her fall and saved her life. The applicant and the other accused were subsequently arrested.

8. The judge noted that the main evidence for the prosecution came from the girls and that their evidence was largely uncorroborated. He indicated that he would approach their evidence with caution since both girls were "on the run" from their homes and from the police and, although no doubt hardened to some extent by their experience, they were still of tender age. There were, he found, a large number of discrepancies (particularly as regards the evidence of victim 1) but he did not think that either girl had deliberately lied to the Court. He observed that victim 1 had given her statement to the police 10 hours after her admission to hospital and, bearing in mind her ordeal and the injuries she had suffered, he felt able to accept her assertion that her mind was not clear when she made that statement. In his view, this went a long way to explain the many discrepancies that had been pointed to by the solicitor acting for the applicant.

9. The judge dealt particularly with two of the discrepancies relied upon on behalf of the accused men. He reached the conclusion that victim 1 was basically honest and truthful. He found victim 2 a more accurate witness and that she was an honest witness despite the fact that she had lied (as she admitted) to the police when she gave her first statement to them.

10. The judge said that he had no difficulty in finding that whilst the girls were in the Triangle Street flat they both suffered a loss of freedom (1st and 2nd Charges). All the accused men, except D3, were, in his view, clearly involved in the detention in one way or another and the judge made an express finding that those men participated jointly with the common design to detain the girls against their will for the purpose of prostitution and also to assist Dl to manage the flat as a vice establishment (7th Charge).

11. As regards the applicant, the judge noted that there was no corroboration at all of the girls' evidence and warned himself of the dangers of convicting upon the uncorroborated evidence of the complainant in respect of the charges before the Court.

12. As to the charges of living on the earnings of prostitution (3rd and 4th Charges) the judge applied the presumption created by section 137 (2) of the Ordinance. The applicant was, he said, living with the girls who were clearly prostitutes and, being habitually in their company, he was aiding and abetting their prostitution. The presumption had not, in his opinion, been rebutted on the balance of probabilities.

13. The judge said that the applicant had clearly played a major role in the management of the flat as a vice establishment (7th Charge). He kept the keys and a record of the customers served by the girls. He lived in the flat and was in charge of day to day activities.

14. In respect of the 9th, 10th and 11th Charges, the judge said that despite the absence of corroboration he believed that the girls were telling the truth when they gave evidence that the applicant had had sexual intercourse with them [their ages were not disputed] and found the charges proved. He explained why he felt it unsafe to convict the applicant on the 12th and 13th Charges.

15. By the grounds of appeal he drafted himself, the applicant asserted that the trial had been unfair and that the prosecution had failed to produce sufficient evidence to prove the charges - the testimony was vague and had not been carefully examined by the judge. There were contradictions with what the prosecution witnesses had said in their statements to the police as compared with their evidence in Court.

16. In answer to my Lord the Vice President presiding today, the applicant said that he had nothing to add to his written grounds of appeal. We have carefully read the entire transcript of the proceedings and it is plain to us that the judge tried the case with anxious care. We note that the applicant elected not to give or call evidence. There is no sign of any misdirection or non-direction. The convictions on each of the charges of which the applicant was convicted are unassailable.

17. The application for leave to appeal against his convictions is refused. Before taking leave of this case, we wish to add that the applicant must consider himself most fortunate that he received a total only of 15 months' imprisonment for the offences he committed involving these two young girls.

Representation:

Applicant - in person

Mr. John Reading (Crown Prosecutor) for the Crown