Ip Kam Shing Alias Kampon Sempbob Pokaseth v. The Queen
Read the full judgment text of CACC 524/1968 on BabelCite. This Court of Appeal judgment.
1. In the court below the appellant was charged with five separate charges of trafficking in females into the Colony for prostitution contrary to section 3(1)(a) of the Protection of Women and Juveniles Ordinance, each charge being concerned with a different female. He was also charged with five separate charges of procuration of females contrary to section 4(1)(b) of the same Ordinance. The charges are concerned with the same five females. He was also charged with the unlawful detention of fema
|
CACC000524/1968 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 524 OF 1968 -----------------
Coram: Briggs, J., Huggins, J. ----------------- JUDGMENT ----------------- 1. In the court below the appellant was charged with five separate charges of trafficking in females into the Colony for prostitution contrary to section 3(1)(a) of the Protection of Women and Juveniles Ordinance, each charge being concerned with a different female. He was also charged with five separate charges of procuration of females contrary to section 4(1)(b) of the same Ordinance. The charges are concerned with the same five females. He was also charged with the unlawful detention of females contrary to section 8(1)(a) of that Ordinance and to living on the earnings of prostitution contrary to section 17(1)(a) of that Ordinance. This last charge was also concerned with the same females. 2. The appellant was acquitted of all the charges of trafficking in females under section 3(1)(a) and of the offence of unlawful detention. This is an appeal against his conviction of the five charges of procuration and the charge of living on the earnings of prostitution. 3. I will deal with the 5 charges of procuration first. The relevant part of the section under which the appellant was convicted reads thus:-
The appellant is a Thai business man from Bangkok. The case for the prosecution was that he arranged for five Thai girls to accompany him to Hong Kong on various pretexts. He made their travelling arrangements for them and upon arrival in Hong Kong on 7th May 1968 accommodated them in his premises in Nathan Road. At first the appellant took the girls out sightseeing in Hong Kong. They had not been here before and were unable to speak any language except Thai. The appellant then told the girls that they must earn money for him as prostitutes. He himself or someone on his behalf conducted each girl to a boarding house or hotel where she was introduced to a man with whom she had sexual intercourse. Later she was collected by the appellant or someone on his behalf and returned to his premises where the girls were all virtually kept prisoners. 4. No money was paid to the girls and there was some evidence that the appellant made threats and even beat up one of the girls. Occasionally a Mr. Lo would conduct the girls to an hotel on the appellant's behalf. This state of affairs continued until 15th June when one of the girls escaped and found her way to the police. 5. Counsel for the appellant argues that the District Court judge misdirected himself in law as to the meaning of the section under which the charges are brought. 6. At the trial all of the girls gave evidence. In his judgment the District Court judge deals with this exhaustively. He then goes on to say this:-
The charges referred to are the 5 charges of trafficking and the charge of unlawful detention. 7. The trial judge went on to state that he considered the five girls were "girls of light virtue who were open to the suggestion of pursuing the trade (prostitution) once they had come (to Hong Kong)". He said that it was not necessary for the prosecution to prove that the girls had not previously been of immoral character or known prostitutes. The moral character of the girls was immaterial to the charge. 8. I do not think that this accurately states the law. I think the trial judge was to a certain extent influenced when coming to this conclusion by a suggestion made in the course of the trial that the sub-section under which the charges are laid had been amended. It was hinted that section 4(1)(b) originally contained the words "not being a common prostitute" as an ingredient of the offence, words which were later excised by an amending Ordinance. This is not the case. Such an amendment was made to the original paragraph (1)(a) of the section but not to paragraph 1(b), the paragraph with which we are here concerned. 9. Be that as it may the words of the section are "to procure any female to become a common prostitute". If such a female is already such a person then the provisions of the sub-section have not been satisfied. The mischief aimed at by the sub-section is procuring persons not procuring prostitutes. The authorities clearly prove this. 10. In R. v. Christian(1) the learned Common Sergeant rejected the argument that the introduction of a girl to a brothel for the purposes of prostitution was of itself procuration. He said "This Act is aimed at getting hold of women and girls - decent girls - in some way and turning them into prostitutes". The case of Staub(2) was referred to. I do not think that it helps. It was a case where a girl lived with an unmarried man as his mistress. After some time he induced her to become a prostitute going so far as to show her her future beat. It was held that despite the fact of her immoral relationship with the accused he was rightly convicted of procuring. In order to satisfy the section the girl must obviously not be a common prostitute. What the Crown must prove is that a girl whether of bad character or not, who is not a common prostitute, was procured. Something more than an act of assistance to a willing victim is necessary. 11. In the present case the learned trial judge disbelieved the girls' story: he found it "incredible". He also found that the girls were "not unwilling". And he was clearly of the opinion that all it was necessary for the Crown to prove was some act of assistance in facilitating them to come to Hong Kong for the purposes of plying the trade of prostitute here. 12. There is another matter to which I must draw attention. It is common ground that the act of procuration must be committed in Hong Kong if the Crown are to succeed. No finding was made on this point in the judgment. Indeed the indication is that the judge accepted the evidence of the purchase of the tickets and the arrangements made in Bangkok as being evidence of the procuration. 13. For example towards the end of the judgment the learned trial judge summarises what facts had been proved to his satisfaction by the Crown.
14. In my view there was a misdirection on the two points dealt with above and the conviction on the 5 charges of procuration cannot stand. I would therefore allow the appeal against charges 7-11 inclusive. 15. Counsel for the appellant argued other grounds of appeal with which we do not think it necessary to deal. 16. I now come to the 12th charge. The appellant was convicted of living on earnings of prostitution contrary to section 17(1)(a) of the Protection of Women and Juveniles Ordinance. 17. Sub-section 3 of section 17 of that Ordinance reads as follows:-
Curiously enough the prosecution in the court below did not rely upon this sub-section. I do not think in consequence that it can be relied upon in this court in the circumstances of the present case. 18. So far as this charge is concerned the girls were clearly accomplices and their evidence should have been corroborated. 19. The trial judge dealt with the question of corroboration at some length in his judgment. But he restricted that consideration to the charges of procuring specifically. I do not think that it was necessary for the evidence of the girls to be corroborated so far as those charges were concerned. Sub-section 2 of section 4 of the Ordinance does not apply since there was no question of there being a conviction on the evidence of one witness only. And the girls themselves were not accessories to the offence of procuration. They were victims. Their evidence does however corroborate the evidence of Mr. Lo and Mr. Leung so far as the charges of procuration is concerned. 20. When one turns to the 12th charge, the evidence of the girls does not require corroboration as a matter of law [See King v. R.(3)]. However we think that the judge would have been wise to warn himself of the danger of accepting their evidence without corroboration. I have no reason to doubt that he did so. Unfortunately the only evidence that the girls did give was that they received no money for their activities themselves. What was wanted was corroboration of the evidence of Mr. Lo tending to connect the appellant with the reception of money so earned by the girls, for Mr. Lo was obviously an accomplice. No corroborative evidence has been brought to my attention. 21. In my view there is no alternative but to allow the appeal on this charge also. 22. The convictions are therefore quashed. 23. The appellant is acquitted and discharged.
Representation: Mr. B. Sanguinetti (H. H. Lau & Co.) for Appellant. Mr. Duckett C. C. for Respondent. (1) (1913) 23 Cox 541. (2) (1909) 2 C.A.R. 6. (3) (1914) 10 C.A.R. 117. |