The Queen v. Fong Yuk Choi and Others

CACC001086/1983

IN THE COURT OF APPEAL

BETWEEN

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Coram: McMullin, V.-P., Li & Silke, JJ.A.

Date: 11th October 1983

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JUDGMENT

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Silke, J.A.:

1. This is an application, by Fong Yuk Choi - 1st defendant at trial - "D1" - and Chu Nga Kum - 2nd defendant at trial - "D2" - for leave to appeal against both conviction and sentence; and by Chan Tung Pang -3rd defendant at trial - for leave to appeal against his sentence.

2. We dismissed the applications for leave to appeal against conviction and granted the applicants for leave to appeal against sentence. We stated we would give our reasons in writing. This we now do.

3. D1 was convicted on two counts - counts 2 and 5 on the charge sheet - of exercising control over a woman for the purpose of her prostitution, contrary to section 130(a) (ii) of the Crimes Ordinance the girls concerned being Tawon and Junsom respectively. He was sentenced to three and one half years' imprisonment on each count, concurrent.

4. D2 - the common law wife of D1 - was convicted of four counts of exercising control - counts 2, 5, 9 and 10 - the girls being Tawon, Junsom, Renoo and Noknoi respectively. She was sentenced to two years' imprisonment on each count, concurrent.

5. D3 pleaded guilty, halfway through the trial, to three counts - counts 2, 9 and 10 - of exercising control and two counts - counts 7 and 8 - of trafficking in women. He received a sentence of three years' imprisonment on each count, concurrent.

6. There was a 4th defendant, Somsri, at trial who is not before us.

7. It is not seriously disputed that the Wai Fung Apartment House in Kwun Tong was a well appointed brothel where imported Thai girls offered their services willingly.

8. The first and second floors of the premises were the ones upon which the activities took place: the fourth floor was the dormitory for the girls. There was a "secret passage" from the dormitory to the lower floors.

9. The father of D1 held the lease on the first floor, D1 himself held the lease on the second floor and he was the owner of the flat on the fourth floor used as the dormitory.

10. Several police raids were carried out at the premises,  girls were seen in various stages of dress and undress and customers were found thereon.

11. All the girls were recruited in Bangkok and all were fully aware of the role allotted to them.

12. There was evidence that after Tawon came to Hong Kong she was introduced to D3 as her "boss" and that at the Apartment House both D1 and D2 called her to customers and she saw them both being paid for the services she rendered. At the end of each day, her record of customers was checked by Dl and D2 who compared it with their own note book record.

13. When Junsom arrived she was introduced by D4 to D1 as her "boss". Dl held her passport for a short time and he also held her return air ticket. D2 was seen at the counter in the Apartment House when D1 took her there and D2 brought customers to her.

14. Renoo, when she arrived, was met by D1 at the airport and he took her to the Apartment House and he held her passport. Then D3 took her to D2 who brought in the customers. Again she saw D2 at the counter when payments were made.

15. Noknoi, on reaching the Apartment House, saw D2 at the counter being paid by customers who had been brought to her.

16. There is no suggestion that there existed any element of force or coercion in respect of the girls. This was a big money operation - a large number of customers being serviced at $140 or $150 per time. The girls, having dealt with the first 120 customers, would from then on be paid $30 per person. Accommodation and food were supplied to them.

17. Mr. O'Reilly Mayne, with him Mr. Lee, for the applicants argued two main grounds in respect of conviction.

18. The first: that the words "control direction or influence for the purpose of prostitution" contained in the section connoted some form of duress or at the least a "Lack of freedom'" and that without this being shown the convictions could not stand. He further submitted that it was not shown upon the evidence.

19. The second: that the girls were accomplices and that they therefore required corroboration and one could not corroborate the other.

20. On the first point: the trial judge, in a lucid and careful judgment, acknowledged that he could find little  authority on the precise meaning of the words "control, direction or influence". He rejected the defence contention that controlling must amount to something more than supervising and that it implies a lack of freedom of some kind.

21. We agree with him. These words should be given their ordinary and natural meaning. In a similar section in the Protection of Women and Juveniles Ordinance the words "force or intimidation" were used which are singularly absent in section 130. The words here used may very well include forced prostitution - hence the high maximum penalty of fourteen years' imprisonment - but proof of this is not an element necessary to conviction.

22. The general evidence here, if accepted, of accommodation being provided, working rooms being provided, customers being brought to the girls and payment being made by those customers to both the applicants, all for the undoubted purpose of prostitution is sufficient in our view to ground a conviction on the several counts brought under section 130 whether one calls the activities of the applicants in relation to the girls "control", "direction" or "influence".

23. As to the second point: the trial judge was fully aware of. the provisions of sub-section (2) of section 130 which by law required that corroboration was necessary before a conviction could be come to. He warned himself of this and in considering the evidence he found it in that which was said by the several customers called in evidence, the false statement of Dl, the evidence of the police officers who took part in the raids, the evidence of the ownership of the premises and the matrix of similar fact evidence.

24. He made a positive finding that the girls were not accomplices and therefore that they could corroborate each other. It is basically this finding that Mr. O'Reilly Mayne challenges. Had he succeeded in this appeal on the "control" point the second limb would not, he submits, arise but he argues that if control does not need "duress" to be shown before a conviction can be come to, then the issue as to accomplices is a real one.

25. We think the trial judge to have been correct in his finding and that, in following the guideline set out in King ^(1), he came to the right conclusion King ⁽¹⁾ of course referred to living on immoral earnings. Lord Reading, C. J., having recited the defence argument that the girl was an accomplice and that the girl must be an accomplice in the offence charged against the appellant went on:

"It is sufficient to say that there is no evidence of this and it is not necessarily the case. The only way in which it is possible to argue the case is to say that in doing some of the acts, which she must have done to carry out the intention of the appellant, she must have been guilty of soliciting or of some other offence. It is impossible to say that she is therefore an accomplice in the crime with which the appellant was charged."

26. So here the argument would have to be that in engaging in prostitution the girls were aiding and abetting the exercise by the applicants of control, direction or influence over them for the purpose of that very prostitution. That they willingly accepted the assistance of the applicants which provided them with the opportunity to carry on their profession is undoubted. But in our view it does not make them accomplices in the sense of participes criminis

27. In King ⁽¹⁾ Lord Reading went on to say' that a Judge,

"is justified in warning the jury against accepting the evidence of a girl who is leading such a life against a man."

We would respectfully endorse that passage in the context of this case.

28. In the course of his remarks in respect of D4 on trafficking counts where, unlike section 130, corroboration is not required by law the trial judge had this to say:

"Nevertheless and despite the fact that it is not essential -I do warn myself that it is desirable to have corroboration of the victim's evidence in cases such as this."

29. We think that when he said this he had King ⁽¹⁾ in mind and that when he came to consider the evidence given by the girls on the exercising of control counts laid against D1 and D2 he had in mind that warning which he had earlier given to himself.

30. Having done so he was entitled to consider one girl to be capable of corroborating the other if he found them, as he did, reliable witnesses. In addition, there was ample independent corroboration as is required by law of their evidence on each of the several counts.

31. The applications for leave to appeal against conviction were therefore refused.

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As to sentence:

32. As we have said there is nothing to suggest that the girls were forced into the trade. There is clear evidence that they were well looked after. There is nothing to suggest that they were other than willing, indeed, possibly enthusiastic participants and nothing to suggest that they were of an age which would require that they be protected.

33. But that having been said, this was clearly a rather sophisticated brothel, and in the circumstances, there was active encouragement of prostitution. This is a form of activity which is condemned by society and which must be seen to be condemned both for its own sake and because of other consequences which can flow from illegal activities of this nature.

34. We think that the high maximum penalty under this particular section is probably to allow for those cases where there is an element of duress, an element of false imprisonment or, in cases nearer to Hong Kong, an element of triad stamping.

35. The trial judge made reference to a sentence passed by Judge O'Dea of five years' imprisonment on an Exercising Control charge. We are indebted to Mr. Howard, who appeared for the Crown both here and below, for his researches as to the sentences generally passed by the Court in offences of this nature and in the particular into the facts of the Judge O'Dea case. Of the latter it is sufficient to say that it was a clear case of forced prostitution where. the girls concerned were imprisoned for upwards of nine months.

36. In R. v. WONG Chi-hung & others ⁽²⁾, a decision of a Division of this Court, presided over by My Lord Vice President McMullin, a sentence of twelve months for managing a vice establishment was reduced to six and one of eighteen months for keeping a vice establishment reduced to nine. The establishment there was not on so grandiose a scale as is the one here. Further, while requested by the Crown to do so the Court refused to lay down guidelines, being uncertain as to the necessity for guidelines in relation to the incidence of offences of this nature.

37. From Mr. Howard's researches it would seem that while the incidence of offences of this nature remains on the high side it has not conspicuously increased.

38. We agree that an immediate custodial sentence in the circumstances of this case is proper but that the sentences which have been imposed were a good deal higher than the normal run.

39. To reflect that, the sentence on the 1st defendant will be reduced to two years' imprisonment from three and a half, the sentence on the 3rd defendant will be reduced to twenty months - that reflects the differential allowed for by the trial judge, which possibly was a merciful one in the light of his plea halfway through the case, but which we are not prepared to alter now - in respect of the 2nd defendant, the woman, the sentence of two years will be reduced to nine months. This is to reflect, in particular, the fact of the young child which she has and is to that extent particular to her own circumstances.

(1)    (1914) 10 Cr.A.R. 117

(2)    Criminal Appeal No. 285 of 1982

Representation:

D. O'Reilly Mayne, Esq., Q.C. & John Lee, Esq. instructed by Messrs. Y.K. Poon & Co. for three applicants.

A. Howard, Esq. for Crown/Respondent.