HKSAR v. Pang Chak Wai

HCMA 1012/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1012 OF 2005

(ON APPEAL FROM KTCC 5119/2005)

____________

BETWEEN

____________

Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 7 December 2005

Date of Judgment: 7 December 2005

_______________

J U D G M E N T

_______________

1.The Appellant who was convicted after trial of one charge of soliciting for an immoral purpose.  She was sentenced to three months’ imprisonment, and the learned Magistrate activated a breached two months suspended prison sentence and ordered that the sentences be served consecutively making a total of five months’ imprisonment.

2.Upon an application for review, the learned Magistrate then reviewed the sentence and ordered that only one month of the suspended sentence be served consecutively to the sentence of the present offence, therefore reducing the total sentence to four months’ imprisonment.

3.The Appellant now appeals against both conviction and sentence.  The evidence, mainly comes from PW1, a police officer, who was in plain clothes.  He gave evidence that on the date of the offence he was solicited by the Appellant at the road junction and she offered him oral sex and sexual intercourse for $150.  She also told PW1 that she had a one-woman brothel and she had not had a customer that day.

4.The witness then said that he was told to go to the address and that when he arrived, he pressed the doorbell and the Appellant let him in and told him to take a shower.  On the way to the Appellant’s brothel, the witness had contacted his colleague through his mobile phone for assistance.  The police officer after taking a shower came out of the bathroom clothed. 

5.The Appellant at that stage suspected that he was a police officer and said that she did not want go through with the transaction and then dashed down stairs through the main door and left the premises.  The Appellant, at that stage, was found by the learned Magistrate to have then made a call to the police 999 console where she complained that a customer of hers was frightening her and she had gone downstairs, and she then gave her address, surname and telephone number.

6.By the time the Appellant had gone downstairs, the colleague of PW1 was already downstairs.  Subsequently, the Appellant was intercepted and arrested for a soliciting for an immoral purpose.  The Appellant denied the offence.

7.At the trial, the Appellant was represented by counsel who cross-examined PW1 in great detail basically about the timing and PW1 gave estimates as to how long he took in the shower and how long it took for him to arrive at the Defendant’s home.  PW1 also denied that the Appellant had refused his business when he pressed the doorbell and that he had pressed the doorbell and asked the Appellant to use the toilet and that is the only reason why the Appellant had let him into the flat.

8.And counsel similarly cross-examined all the police officers who were called, and in fact the 4th police witness was tendered for cross-examination.  After the prosecution witnesses had given evidence, the Appellant elected not to testify nor call any defence witnesses.

9.The learned Magistrate then very properly and very carefully considered the evidence of the prosecution witnesses.  And as is his duty he assessed very carefully the credibility of the prosecution witnesses and he drew inferences very properly from the evidence which he accepted as truthful.  For example, he drew an inference that the Appellant must had made the 999 call after leaving the flat and was on her way downstairs.

10.The learned Magistrate’s reasoning is set out very clearly both in his oral verdict and also in his Statement of Findings and I do not wish to go through it, but very briefly he found that he believed the evidence of PW1, that the Appellant had asked him to patronize her and offer sexual services in return for $150 and based on those facts, the learned Magistrate had no doubt in his mind that it amounted in law to soliciting PW1 for an immoral purpose and therefore at the end of the day convicted the Appellant.

11.The Appellant on appeal is unrepresented and spent a lot of time giving evidence about why she thought this was a police conspiracy against her.  She also complained that the arresting officer was not call give evidence and that other three other important witnesses had not been called. Well, the learned Magistrate heard the evidence, the Appellant was represented by counsel and counsel had indeed asked the prosecution to tender one witness PW4 for cross-examination.  If other witnesses were required and were important, I have no doubt that defence counsel would have asked for those witnesses to be tendered.  That was not done, so I do not see any merit in that ground. 

12.The Appellant also spent a lot of time telling this court about what she would have done or not have done in those circumstances, but none of this was before the learned Magistrate as the Appellant had chosen not to testify.

13.The learned Magistrate as I have said after analysing the evidence of the prosecution witnesses came to this conclusion that they were honest and credible witnesses and accepted their evidence.

14.I have read the Statement of Findings of the learned Magistrate and the oral reasons he had given, and I do not see where the learned Magistrate had made any error as to the facts or as to the law in his findings.

15.I see no merit in the grounds of appeal against conviction and the appeal against conviction is therefore dismissed.

16.Now in relation to the appeal against sentence, the Appellant advances in support of her appeal that she has to raise two sons in China and her mother is dying and she has to send the money to them and she has not seen her family because she has been kept in Hong Kong whilst on bail.  Well, all these matters were put before the learned Magistrate when he was deciding sentence.

17.The learned Magistrate took into account very properly that the Appellant is recidivist and has had 29 previous convictions, 28 of which were for identical offences.  The Appellant has been given many many chances in the past, she has been fined, she has been given suspended sentences.  And, nonetheless, the Appellant has not taken advantage of these chances and has continued to re-offend and on the 29th conviction, she had received two months’ imprisonment suspended for two years but she proceeded to commit this offence whilst the suspension was still in force.  This shows that the Appellant has no desire whatsoever of changing her ways.

18.The Appellant said she never thought she would be sent to prison and again the lie has been shown so that because she had been sent to prison before, one to three months in the year 2000 for similar offences, two months in 2002 and three months in 2004, so I have no doubt at all that in the Appellant’s mind she knew she would be facing a prison sentence this time.

19.The learned Magistrate, I must say in these circumstances was very lenient in reviewing the sentence in only making the suspended sentence partly consecutive to the present offence.

20.I must say that I was contemplating on reviewing that and making the suspended sentence fully consecutive to the sentence she is now serving for the present charge, but in the circumstances seeing that the Appellant is representing herself, I do not want to do that and, having said that I do not see any merit whatsoever in this appeal against sentence and so the appeal is dismissed.

Mr Harish Melwaney, SGC of the Department of Justice, for the Respondent

Appellant in person