HKSAR v. Kwok Wai Lun

HCMA 754/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 754 OF 2004

(ON APPEAL FROM ESCC 184/2004)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 13 October 2004

Date of Judgment: 5 November 2004

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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 was convicted after trial of one charge of “living on the earnings of prostitution of others” contrary to section 137 of the Crimes Ordinance, Cap 200 of the Laws of Hong Kong.  His appeal against conviction was dismissed and I give the reasons hereunder.

Prosecution’s Case

2.The particulars of the charge are that the Appellant and the 2^nd Defendant between the 1March 2002 and 20 May 2002 knowingly lived wholly or in part on the earnings of the prostitution of Mak Sau-mei.  Madam Mak was called as the first prosecution witness and she had testified that she had agreed with the Appellant and the 2^nd Defendant to use the premises at Flat J, 16/F Southern Building, North Point, Hong Kong (hereafter known as “the premises”) for prostitution after the Chinese Lunar New Year holiday in 2002.

3.Under the agreement, PW1 would share 60% of the income generated from the prostitution whereas the Appellant and the 2^nd Defendant would share 40% of that income.  PW1 was not required to pay the rental and the Appellant and the 2^nd Defendant were responsible for supplying the sundries and for placing advertisement in newspapers.  PW1 said she would deposit the 40% of the income into the bank account of the 2^nd Defendant.  And this was her practice until May 2002 when PW1 moved out of the premises.

4.Sometime, in the middle of October 2002, PW1 had agreed to take over the premises from the 2^nd Defendant and to pay key money of $20,000.  It was also agreed that a loan would be made to PW1 to pay the key money, and if PW1 could not repay the loan, she needed to pay a monthly interest of $2,000.  So, between December 2002 and February 2003, PW1 had paid three instalments, $6,000 in total.

5.PW1 said that she had stopped paying the instalments after February 2003 because she had been contacted by the ICAC who had told her to stop repaying the loan.  PW1 had testified that she had been contacted by the ICAC in March 2003.

6.At the conclusion of the case, counsel for the Defendant had submitted that PW1’s first statement was dated 12 April and therefore, that had contradicted PW1’s evidence that she had been contacted by the ICAC in March (see transcript at page 425T).

Magistrate’s findings

7.The learned Magistrate after considering all the evidence concluded that PW1 was an honest and reliable witness.  The learned Magistrate did not accept that the witness had fabricated her evidence against the Appellant and the 2^nd Defendant in order to escape from having to repay the loan to the 2^nd Defendant.  The learned Magistrate also accepted that PW1 may not be completely reliable on the various dates but nevertheless he accepted that it did not affect her overall credability and reliability and so at the end of the day, the learned Magistrate found that he was able to rely on the evidence of PW1 to convict the Appellant in this case.

Appeal

8.At this appeal, Mr Wong who represents the Appellant sought to adduce two statements of ICAC officers as fresh evidence in support of the defence contention that PW1 had not been contacted by the ICAC until April 2003. 

9.Mr Wong argued that this was of crucial importance because this would prove that PW1 had lied to the learned Magistrate as to why she had stopped paying the alleged interest to the Appellant and his co-Defendant and therefore this would affect the learned Magistrate’s conclusion that PW1 did not testify against the Appellant in the trial in order to avoid repaying the loan. 

10.The application by Mr Wong was refused by me on the basis that this evidence could have been with due diligence discovered at the trial.  In fact, as I had pointed out earlier, defence counsel had made the submission that the ICAC had first interviewed PW1 on 12 April.  It therefore would not have been difficult for defence counsel to have asked the prosecution to call the ICAC officer in charge of the case to give evidence as to when the ICAC had first contacted PW1 in this case but that was not done.

11.The other matter is that the learned Magistrate in considering the reliability and credability of PW1 had considered also the fact that she may not be completely reliable on the dates.  And that is understandable because PW1 like most witnesses did not at the time when the event was happening make notes of the dates.  The test on such an application is whether in light of the new evidence, this court would consider the conviction to be unsafe or unsatisfactory and very simply put, I do not think it affects in any way, the propriety of the conviction.

12.So in those circumstances, I had refused the application to omit the fresh evidence and the motion was denied.  Upon my ruling, Mr Wong then proceeded with the appeal on Ground 3 of his grounds of the appeal.  Mr Wong complaint that the learned Magistrate had failed to consider the truth of the Appellant’s cautioned statement and therefore had insufficiently dealt with the defence case.

13.As Mr Hung for the Respondent pointed out in the cautioned interview, the ICAC was not investigating the present charge but, they were investigating the 2^nd Defendant’s business so therefore the answers given to the question asked by the ICAC officers did not directly pertain to the present charge that the Appellant faced. 

14.The learned Magistrate at paragraph 31 of the Statement of Findings correctly stated that the Appellant had not made any admissions in respect of the present charge and that the ICAC officers had not put any specific questions about this charge to the Appellant.  It is apparent from the Statement of Findings that the learned Magistrate did consider the cautioned statement.  I found no merit in this ground of appeal or in the other grounds of appeal as submitted by Mr Wong.

15.In those circumstances, I therefore had dismissed the appeal against conviction.

Mr Henry Hung Hing-fong, GC, of Department of Justice, for the Respondent

Mr Philip Wong, instructed by Messrs Cheung Fung & Hui, for the Appellant