The Queen v. Yip Yan

CACC000127/1986

BETWEEN

Coram: Cons, V.-P., Macdougall & Hunter, JJ.

Date of hearing: 12th June, 1986.

Date of delivery of judgment: 12th June, 1986.

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JUDGMENT

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Cons, V.-P. delivered the judgment of the Court:

1. This is an application for leave to appeal against conviction by His Honour Judge Souyave at the Kowloon District Court on counts of false imprisonment, blackmail and living on the earnings of prostitution.

2. Although the victim is now only 17 years of age she has been a prostitute for several years already. She had, if we may so put it, been in business with the Applicant. He and another man with whom he was jointly charged were in association to organise various prostitutes. At the same time they lent money to the prostitutes who would repay from their earnings with interest.

3. All went well until November last year when the victim decided to free lance. Unfortunately she took that decision when she owed the Applicant and his colleague some $400.

4. In the early hours of the 14th November, that is about two weeks after she left the organised business, the victim, was, as the police or the media might put it, "picked up" by the Applicant and another friend of his. Repayment of the money due was demanded, which by then, according to the Applicant, had accumulated to $31,000. To cut a long and distasteful story short, the victim was assaulted, thoroughly ill-treated, kept "in custody" of one sort or another and made to work as a prostitute until she escaped on the 16th of the month. The money she earned in those 3 days was taken in satisfaction of what had become an agreed figure of $25,000. It is upon this conduct that the Applicant and his colleague were charged and convicted. It should perhaps be observed, as counsel pointed out this morning, that the charges of false imprisonment and blackmail were limited to the first day only.

5. Only two of the Grounds of Appeal are now relied upon. The first is that the evidence was not sufficient to substantiate the charge of false imprisonment. Great reliance is placed upon an answer made by the victim at the close of her cross-examination by counsel who then appeared for the Applicant. She said "I did not walk out on the 14th or 15th because I did not want to do so - a bit - I could have walked out if I wanted to do so." The Judge said in his Reasons for Verdict:-

"She (the victim) agreed that A1 never told her that he was afraid she would run away but she emphasized that she could read his mind.  She said she did not walk out on the 14th or 15th because she did not want to do so "a bit" and that she could have walked out if she wanted to do so. I did not interpret her last two answers as meaning that she was free in the circumstances to leave A1 and A2 and not to submit to their control and directions."

We have been taken through the relevant evidence. In particular there is a passage immediately before that part of the cross-examination we have quoted -

"        For the man I worked in April 1984 I found it easy to move out. I was clever to shake him off. I cannot remember on how many occasions I did that sort of . thing - yes, more than once. I did not have to pay any money to quit working. Lust walked out."

6. In the light of that passage and bearing in mind the rest of the evidence as a whole, we do not think that the passage on which counsel relies so heavily can bear the weight he places on it. We are satisfied that the evidence does support the Judge's conclusion.

7. The second ground of Appeal is that there was no evidence to show that any of the money which she earned in those three days was paid to the Applicant. Again we refer to what the Judge said -

"that between the 14th and 16th November 1985, P.W.1 (the victim) worked as a prostitute under the control and management of both A1 (the Applicant) and A2 (his colleague) acting jointly and in concert, that the sums of money earned by her during that period were received by them so as to reduce an alleged debt of $25,000 which P.W.1 did not owe to them. They were benefiting financially in adopting that course of conduct."

It is true that there was no direct evidence of payment to the Applicant, but there was evidence of payment to a third party working with the Applicant and his colleague, and that some of the money at least was passed on to the colleague. Vie have no doubt that the Applicant was paid his share. That is exactly how he had told the victim he was to be repaid what she owed him. The Judge was perfectly justified in his conclusion.

8. For these reasons we refuse leave to appeal against conviction. As far as sentence is concerned the Judge imposed, as we indicated earlier, three sentences of 9 months all to run consecutively. It is suggested that as they all formed part and parcel of the same transaction, the sentences should have been made to run concurrently. The Judge has not expressly said why he chose otherwise, but it may be that his emphasis on their total length indicates his opinion that 27 months imprisonment was appropriate for the matter as a whole and the division into 3 separate sentences was no more than a convenient method to achieve that. We think that in any event the sentence overall was justified and do not propose to interfere. The application for leave to appeal against sentence is also refused.

Representation:

Mr. Adrian Bell (M/s Barry R. Driver & Co.) for Applicant

Mr. W.P. Boucaut, Crown Counsel for D.P.P./Respondent