HKSAR v. Tsui Man

HCMA000361/2002

HCMA361/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.361 OF 2002

(ON APPEAL FROM ESCC 635 OF 2002)

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Coram: Deputy High Court Judge Line in Court

Date of Hearing: 24 December 2002

Date of Judgment: 24 December 2002

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J U D G M E N T

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1.This is an appeal against conviction. The appellant appears in person. She was convicted of soliciting for an immoral purpose and breach of a condition of stay. The issue at trial was a very short one.

2.It was common ground that a policeman, working undercover, went to Neptune II Disco at 2:13 in the early hours of a Saturday morning. He met the appellant in there. He had been sitting by himself at the bar. Shortly after the meeting they left that place and went off to a hotel. The purpose of that was to have sexual intercourse. The policeman said she approached him and offered sexual services for money. She said the policeman approached her and that she went to the hotel with him for sex because she was attracted to him. The issue thus turned on credibility.

3.An experienced magistrate saw and heard the witnesses. She believed the policeman. She was quite entitled to make that finding of fact and there is nothing in the material before me that makes me think that finding is in any way open to challenge. But not only that, the inherent probability of the situation massively favoured the prosecution and massively damaged the appellant's case and it hardly needs me to spell out what those inherent probabilities are. It is not impossible for a lady to meet a gentleman in a disco like this at this time of night and within a very short time be attracted sufficiently that she goes to a hotel for sexual intercourse, but given the inherent probabilities and the evidence of the undercover policeman it is much more likely to have happened in the way that he says. Magistrates know their area and what goes on in their local jurisdiction. So taking this, and the evidence and the probabilities together the burden of proof was discharged : the magistrate was sure that it did happen in the way the policeman said.

4.Today the appellant appears in person and puts her case very nicely on appeal. The first point she made was that she spent $400,000 on her defence in the magistrates' court. She produced to me receipts and invoices which show that indeed she paid $414,773 to have that issue litigated, and she makes the point "why would I have spent so much if I had done it? Why would I spend so much if I was truly guilty?" I see the force of the argument, but it would mean that anyone minded to spend a lot of money could come here and argue likewise and undo their conviction. I am sorry she had to spend so much but I cannot let my sympathy for her undo a proper conviction.

5.The appellant also told me that she had an on-going bladder problem which meant that she had to resort to self-catheterisation and she produced documents in support of that and she made the point that it was not nice to look at. The significance of the evidence is that this would be inconsistent with prostitution. Again I take the point but, without going into too much detail, it is quite clearly possible for a lady with that condition to organise matters so that things would not been seen.

6.The appellant also made the point that she had a difficult medical problem with urinary infections and therefore she would be much less likely to indulge in this trade with its risk of infection in that area. Again, while I understand the point, I am afraid it is not one which leads me to overturn this conviction taking alone or with the other points. I regret to say therefore that the order I make is to confirm the order the magistrate made convicting the appellant.

Representation:

Mr Cheung Wai Sun, DPGC of Department of Justice, for the Respondent

The Appellant in person