Tam Cho and Others v. The Queen

CACC000396/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.396 OF 1969

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Coram: Rigby, S.P.J.

Date of Judgment: 15 September 1969

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JUDGMENT

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1. This is a curious case and, fortunately, of a kind which, I hope and believe, is unusual in Hong Kong. The four appellants were charged with, and convicted of, various charges and they now appeal against their convictions and, out of time and with the leave of the court, against the sentences imposed upon them.

2. Before specifying the particulars of the charges preferred against the appellants it is necessary to refer in some detail to the facts of the case. The three central figures are the 1st appellant, TAM Cho, a man aged 28, the complainant, CHAN Yuk-wah, a police constable aged 20, and CHU Wai-ping, a young girl the precise age of whom is not apparent from the record of the case.

3. CHU Wai-ping was a prostitute. She had lived with the 1st appellant for about two years and had had a son by him. During that period she continued to work as a prostitute. In October, 1968, she met the complainant, became friendly with him and, about the end of October, apparently abandoned both her child and the 1st appellant and went to live with the complainant. On or about the 17th of December, the 1st appellant found out where the girl and the complainant were living - at Castle Peak - accosted them and made a scene as a result of which the girl, some two days later, left the complainant and returned to the 1st appellant. Some time later she returned to the complainant and resumed cohabitation with him at various addresses and finally at an apartment house in Yuen Long. The complainant at that time was stationed at Pat Heung Police Station. The complainant admitted in his evidence that at that time he believed that the girl was, in fact, the wife of the 1st appellant. He further admitted in the original statement that he made to the police that even during the time the girl was living with him she continued to ply her trade as a prostitute - apparently with the full knowledge and consent of the complainant himself - although subsequently he categorically and repeatedly denied, on affirmation before the learned magistrate, that he ever knew she was a prostitute.

4. At about 9 p.m. on the 5th February, 1969, the 1st appellant and the 3 other appellants arrived at the Yuen Long apartment house where the complainant and the girl were living. Despite their protestations to the contrary, the inference would seem clear beyond any reasonable doubt that the 1st appellant went there in an aggressive mood ready and willing to make trouble with the complainant and the girl, and that the 3 other appellants were there ready to assist him if necessary. At the apartment house the 1st appellant entered the room occupied by the complainant. There, an argument took place and the 1st appellant assaulted the complainant; that assault was the subject matter of Charge B, to which the first appellant pleaded guilty at the outset of the trial and in respect of which he was sentenced to 7 days' imprisonment (such sentence being consecutive upon other sentences imposed upon him). An argument took place in the room as to what was to become of the girl and the complainant and the girl went downstairs with the four appellants. There was a direct conflict of evidence as to whether the complainant and the girl went downstairs willingly or whether they - and particularly the complainant - were compelled by threats or force, and against their will, to go downstairs and thereafter accompany the four appellants to their final destination. The learned magistrate, who appears to have accepted in its entirety the evidence of the complainant, apparently accepted his testimony that before proceeding downstairs the 1st appellant had said, in the presence and he ring of all the appellants, that if the complainant tried to run away he would stab him to death. There was no evidence that any weapon of any kind was seen in the possession of any one at any time prior to the arrival of the party, including the complainant and the girl, at No. 4 Matheson Street, Wanchai, where the party eventually arrived, having proceeded there from Yuen Long, New Territories, by taxi, minibus, ferry across to Hong Kong island, and by taxi on Hong Kong island. However, the learned magistrate on that evidence, together with the evidence as to the surrounding circumstances, convicted all four appellants of the charge of falsely imprisoning the complainant, the subject matter of Charge C and sentenced all 4 of them to 9 months' imprisonment (such sentence to run consecutive upon any other sentences imposed upon them).

5. There was also a charge, the subject matter of Charge D, of falsely imprisoning the girl, but at the conclusion of the case for the prosecution the learned magistrate ruled that there was no case to answer on this charge, holding that not only was the girl a thoroughly unreliable and discredited witness but that even on her own evidence it was apparent that she had willingly accompanied the appellants because she wanted to see what would happen to the complainant.

6. Upon leaving the apartment house the whole party boarded a taxi for the ostensible purpose of proceeding with the complainant to some place where they could discuss the situation. In the taxi it is said by the complainant, and the learned magistrate so found, that the 1st appellant, in answer to a question from the complainant as to where they were going, punched the complainant in the face. That assault was the subject matter of Charge E, in respect of which the 1st appellant was convicted and sentenced to 3 months' imprisonment (such sentence to run consecutively upon any other terms of imprisonment imposed upon him). It would appear that at some stage in the taxi the appellants decided amongst themselves that they wanted to go to Tsuen Wan. That conversation was overheard by the taxi driver who declined to take them to Tsuen Wan and stopped the car. They were then in the Mongkok district. The appellants then apparently found they had not sufficient money to pay for their onward destination and one of them went into a building - followed by the others - in order to try and borrow some money to pay for their further fares. Whilst in the building the 1st appellant, according to the evidence of the complainant - which evidence was accepted and believed by the learned magistrate - kicked the complainant on the leg. That kick was the subject matter of a further separate and distinct charge of assault - Charge F - upon which the appellant was convicted and sentenced to three months' imprisonment (such sentence to run consecutively upon any other terms of imprisonment imposed upon him).

7. Money having been successfully borrowed, the party then proceeded by 9-seater minibus to the Star Ferry where they alighted and crossed by ferry to Hong Kong island. All this time the complainant, a police constable, was allegedly still under coercion and detention by the appellants and was apparently too frightened to escape or call out for assistance.

8. From the Star Ferry the party proceeded to 4, Matheson Street, Wanchai, where the 1st appellant lived. In the 1st appellant's room at No. 4, Matheson Street it would seem clear, and the learned magistrate so found, that the appellant was beaten up by the 1st, 2nd and 4th appellants. He was punched in the face, chest and back, and a doctor who examined him the following morning gave evidence as to the bruises he found on his face, chest and back. However, the bruises were not sufficient to warrant his detention in hospital and he was discharged by the doctor after he had examined and treated him. This assault was the subject matter of Charge A, in respect of which the 1st, 2nd and 4th appellants were convicted and all sentenced to 6 months' imprisonment (such sentences to run consecutively upon any other terms of imprisonment imposed upon them).

9. It is clear that there was a good deal of angry conversation both before, during and after the assault on the complainant at Matheson Street. The 1st appellant was angry that his girl friend had been taken away from him by the complainant and he wanted to know what the complainant proposed to do about it.

10. It is relevant to recall the fact that the girl had been plying her trade as a prostitute not only during the period that she had been living with the 1st appellant but also, according to the complainant's own original statement to the police - although subsequently denied by him when giving evidence on affirmation - during the time she was living with the complainant. Under Section 17 of the Protection of Women and Juveniles Ordinance a presumption arises in law that when a man is living with, or is habitually in the company of, a prostitute, that man is knowingly living on the earnings of that prostitute until he proves the contrary. That presumption, it is also relevant to observe, operated not only against the 1st appellant but also against the complainant, a police constable. It is not unreasonable to draw the inference - although, it is true, no such inference has been drawn by the magistrate - that one or other, or both, the complainant and the 1st appellant regarded the girl as a financial asset. What subsequently took place at the Matheson Street house would appear to strengthen that inference. There is a direct conflict of evidence as to the nature of the conversation that took place in the 1st appellant's room at Matheson Street. The complainant said, in effect, that after he had been assaulted he was asked by the 2nd appellant whether he loved the girl and, if so, whether he was prepared to pay $2,000 to keep her. He asked for time to pay and he was told by the 2nd appellant that he must pay $1,200 within three days and the balance within a further three days. This he finally and reluctantly agreed to do, and he was then allowed to leave. He said that during this conversation the 1st and 2nd appellants were standing before him and that one or other of them had a triangular file in his possession which he pointed at him. These allegations made by the complainant were the basis and foundation of Charge G - demanding money with menaces - preferred against the 1st and 2nd appellants. The learned magistrate convicted both the 1st and 2nd appellants on this charge and sentenced each of them to 9 months' imprisonment (to run consecutively to any other terms of imprisonment imposed upon them). It was during the course of his cross-examination about this incident that the complainant denied that he had ever allowed the girl to work as a prostitute and, indeed, he further denied that he had ever known she was a prostitute. That evidence was in flat contradiction to the earlier written statement made by him to the police. It was put to him that during the course of this heated discussion the 1st appellant had abused him and accused him of being content "to eat out of a slipper" (a Chinese expression for living on the immoral earnings of a woman) and actually struck him with a slipper. The complainant agreed that the 1st appellant had struck him with a slipper, but he denied that the 1st appellant had ever accused him of "eating out of a slipper".

11. The case put forward by the 1st appellant was that throughout he was extremely angry with the complainant and that when he got to his room at Matheson Street he abused the complainant and accused him of living on the immoral earnings of the girl, that the complainant in fact admitted it, pleading that his own salary was not sufficient to support him; and that the 1st appellant then slapped and kicked him. The learned magistrate has made no reference to the defence put forward by the 1st appellant on this aspect of the case, but has simply accepted the complainant's version of the case in its entirety. Furthermore, and it is obviously a matter of some importance, he has made no reference to the complete inconsistency - to put it at its lowest - between his written statement to the police saying that the girl had acted as a prostitute evenwhile she was living with him and his subsequent categoric denial at the trial that he ever knew she was a prostitute.

12. At some later stage after the complainant had gone, the 1st appellant went off with the girl to a hotel where, after having taken a bath together, they then slept together. Indeed, when the police came to the hotel the following afternoon, about 3.20 p.m., they were both found together, both in their underclothes, on a bed in a room at the hotel when the police entered the room. That incident was the subject matter of yet another charge against the 1st appellant of unlawful detention of a female "against her will with intent that she be unlawfully and carnally known by him". At the trial the girl actually said that not only had she been taken to the hotel by the 1st appellant against her will, but that he subsequently had sexual intercourse with her there, also against her will. Having regard to all the circumstances of the case, it is hardly surprising that the learned magistrate totally disbelieved her and at the conclusion of the case for the prosecution he ruled that there was no case for the 1st appellant to answer on this charge.

13. Finally, to complete the story, the police found a triangular file underneath the mattress of the upper bunk in the room occupied by the 1st appellant at 4, Matheson Street. It is said that the 1st appellant admitted to a police officer that this file belonged to him, and it would further appear that in the original written statement he made to the police it is recorded that the appellant said "I bought it for $4.00 from the Yee Sang Hardware shop at Sha Tsui Road, Tsuen Wan, two months ago. I bought that triangular file to deal with Chan On (the complainant) with a view to stabbing Chan on because he had got my wife". At the trial the 1st appellant denied on affirmation that he had ever made this statement, but the learned magistrate accepted and believed that he had made such a statement. On the basis of these matters there was a charge - Charge H - before the magistrate against the 1st appellant of possession of an offensive weapon "with intent to use the said weapon for an unlawful purpose". The only evidence that any such weapon was ever found was that of the complainant in the course of which he said that at the time the $2,000 were demanded from him with menaces by the 1st and 2nd appellants, they were both standing in front of him and that one of them was in possession of a triangular file which he pointed at him, but he was unable to say whether it was the 1st or the 2nd appellant. Notwithstanding that fact, the learned magistrate, taking into consideration what he has described as "all the surrounding circumstances" convicted the 1st appellant on this charge - Charge H - and sentenced him to three months' imprisonment (such sentence to be consecutive upon any other sentences imposed upon him).

14. So much for the facts of the case. Mr. Lawrence Leong, who appears for all the appellants - the learned judge before whom this appeal originally came having granted a legal aid certificate - has made no attempt whatsoever to argue the appeal on the basis that all, or any, of the charges were not supported by the evidence. His grounds of appeal are

Subject to one observation, I am satisfied that there are no merits in either of the first two grounds of appeal. For the purposes of an appeal against conviction, what precisely is meant by the third ground of appeal, I do not know. Reverting, however, to the second ground of appeal, I am quite satisfied - and Crown Counsel agrees - that having regard to the provisions of Section 10(2) (a) and (b) of the Magistrate Ordinance, the charge of unlawful detention of a female preferred against the 1st appellant should have been separately tried and that it should not have been included with the other charges brought against all the four accused. It was not an offence of a similar character to the other offences nor can it conceivably be said that it formed part of "a series of acts so connected as to form the same transaction". It was a separate and distinct offence and should have been separately tried. However, no harm has been done because the learned magistrate disbelieved the girl and ruled that there was no case for the 1st appellant to answer on this charge.

15. For myself, I am bound to say that I have had considerable doubt as to whether the evidence justifiably supported the convictions on some of these charges - particularly the charges of "false imprisonment" and "demanding money with menaces". The girl was a prostitute; she had been a prostitute while living with the 1st appellant and she continued to be a prostitute whilst living with the complainant. Presumptions of living on immoral earnings arose not only against the 1st appellant but also against the complainant. The girl was a valuable asset. The 1st appellant was angry to have lost her, and still more angry that she should now be living with the complainant. It is not unreasonable to believe that there was a heated discussion between the principal parties, that the complainant was told that if he wished to keep the girl he should pay for her services, and that he finally and reluctantly agreed so to do. To what extent such an agreement was enforced by threats would have seemed difficult to prove, particularly when one bears in mind the statement made by the complainant that he knew the girl was a prostitute, a fact which he categorically denied on affirmation at the trial. The learned magistrate has made no reference to this wholly contradictory statement but has simply accepted the evidence of the complainant in its entirety. However, I am in no position to substitute my impressions of the evidence, as they clearly appear from the record, for the findings of the learned magistrate - who, both saw and heard the witnesses; nor do I propose to do so, particularly having regard to the fact that Mr. Lawrence Leong, as counsel for the appellants, has made no attempt to challenge the convictions on the grounds that they were unsupported by the evidence.

16. I turn now to the question of sentence. In my judgment, upon the facts of this case, the sentences imposed were manifestly excessive. The 1st appellant was convicted upon 7 charges and sentenced to a total of 33 months and 7 days' imprisonment.

17. The 2nd appellant was convicted on 3 charges - Charge A (Assault), Charge C(False Imprisonment), and Charge G (Demanding Money With Menaces) and sentenced to two years' imprisonment.

18. The 3rd appellant was convicted on Charge C (False Imprisonment) and sentenced to nine months' imprisonment.

19. The 4th appellant was convicted only upon Charge A, the charge of assault at 4, Matheson Street, and sentenced to six months' imprisonment.

20. At the risk of repetition I reiterate that the facts, as accepted by the learned magistrate, established that the 1st appellant was angry that the prostitute with whom he had been living was now living - and still continuing to ply her trade - with the complainant. Assisted by the other appellants, he brought the complainant - against his will as it is said - from the New Territories to the 1st appellant's house in Wanchai, for the purpose of discussing what was to be the future of the girl. At the Wanchai house he, together with the 2nd appellant, told the complainant that if he wanted to keep the girl - and, presumably, wanted to benefit financially from her trade as a prostitute - he had to pay for it, and the amount demanded was $2,000, a sum which the complainant finally and reluctantly agreed to pay. In the course of carrying out this enterprise the 1st appellant, both alone and with the assistance of the other appellants, assaulted the complainant - the final and most serious assault undoubtedly being the beating up of the complainant at the 1st appellant's house at 4, Matheson Street, prior to the demand for payment of $2,000.

21. For myself, I find it difficult to appreciate the justification for the consecutive sentences imposed on the 1st appellant, each of three months' imprisonment, for the punch in the taxi, and the kick on the leg at Mongkok, whilst bringing the complainant to Matheson Street. Similarly, if in fact the triangular file was in the possession of the 1st appellant for an unlawful purpose, it was presumably in his possession at the time the money was demanded with menaces. Whilst it may well have aggravated the offence of demanding money with menaces, it is difficult to see why a consecutive sentence for this offence was imposed.

22. The appeal against sentence will be allowed to the extent that the sentences will be varied as follows:-

The 1st appellant

23. Charge A - 6 weeks' imprisonment

24. Charge B - 7 days' imprisonment

25. Charge C - 3 months' imprisonment

26. Charge E - 7 days' imprisonment

27. Charge F - 7 days' imprisonment

28. Charge G - 9 months' imprisonment

29. Charge H - 1 month's imprisonment

The 2nd appellant

30. Charge A - 6 weeks' imprisonment

31. Charge C - 3 months' imprisonment

32. Charge G - 9 months' imprisonment

The 3rd appellant

33. Charge C - 3 months' imprisonment

The 4th appellant

34. Charge A - 6 weeks' imprisonment

35. Charge C - 3 months' imprisonment

36. All sentences to run concurrently.

Representation:

Lawrence Leong (David Tsang & Co.) for all Appellants.

Winter, C.C. for Crown/Respondent.