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 December 2004

Date of Decision:  13 December 2004

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DECISION

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1.The Appellant was convicted, after trial, of one charge of living on the earnings of prostitution, contrary to section 137 of the Crimes Ordinance, Cap. 200.  His appeal was dismissed on 13 October 2004 and reasons for my decision were published on 5 November 2004.

2.A brief précis of the facts was that the Appellant was charged, together with the 2nd Defendant, for between 1 March 2002 and 20 May 2002, knowingly living wholly or in part on the earnings of the prostitution of a Madam Mak Sau-mei. 

3.Madam Mak was called as a prosecution witness and she had testified that she had agreed with the Appellant and the 2nd Defendant to use the premises in Southern Building, North Point for prostitution after the Chinese New Year holiday in 2002.  She also gave evidence about the agreement the three of them had arrived at, that she would get 60 per cent of her income, whereas the Appellant and the 2nd Defendant would share 40 per cent of that income; that PW1 would use the premises rent-free and that the Appellant and the 2nd Defendant were to supply the sundries and place advertisements in the newspapers.  Evidence was also given that the share that was due to the Appellant and the 2nd Defendant would be deposited into the account of the 2nd Defendant by Madam Mak.  That is, in brief, the background to this case.

4.Much was made of the credibility of PW1 and the learned magistrate, after considering the evidence, convicted the Appellant.  On the appeal, counsel representing the Appellant focussed again on the finding of the learned magistrate in relation to the credibility of PW1.  Counsel’s appeal was based on the fact that, in all the circumstances, PW1 was neither a reliable nor a credible witness.  Counsel had also tried to persuade this Court to allow him to introduce fresh evidence.  That was rejected.  The appeal was subsequently dismissed. 

5.Counsel, Mr Chu, representing the Applicant in this case, is applying for leave to appeal to the Court of Final Appeal under section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.  It is clear from section 32 that for leave to be granted, I have to certify that there is a point of law of great and general importance which is involved in the decision.  As I have indicated above, my decision was purely based, at the time, on the appeal before me by counsel, on the facts in the case.  No argument of law was involved.  From the submission as submitted by Mr Chu, it is clear that the Appellant is now arguing on the law involved in this case.  I consider that outside the ambit of my power under section 32 and so I have to therefore refused this application.

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

Mr George Chu, instructed by Messrs Jennifer Lee & Co., for the Appellant