Attorney General v. Kong Lai Fong

IN THE SUPREME COURT
MAGISTRACY APPEAL

1986 No. 1178
(Criminal)

BETWEEN

ATTORNEY GENERAL

AND

KONG LAI-FONG

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Coram: Roberts, C.J.

Date : 18^th December, 1986

Date of delivery of judgment: 6.1.87

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JUDGMENT

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1. This is a case stated, on the application of the Attorney General, following the discharge by a magistrate of the respondent, who was charged with exercising control over a prostitute contrary to section 138 of the Crimes Ordinance.

2. The magistrate summarizes the prosecution case as follows -

“At the conclusion of the Crown evidence the prosecution evidence was essentially as follows .

PW1 a police undercover agent went to premises situated at l/F, 389 Lockhart Road posing as a customer. Upon entering the premises, PW1 was asked by the defendant 'Sir, are you going to rent a room.' After replying in the affirmative, PW1 was led to one of the eight bedrooms on the premises. And told by the defendant that girls were available and asked if he wanted a girl. PW1 indicated that he did want a girl. The defendant advised PW1 of the price and told him there were 2 kinds of services and that she would introduce him to a girl to see whether she suited. The defendant then left PW1 returning about 2 minutes later with a girl. The defendant introduced this girl to PW1 and asked him if she suited. PW1 replied 'fine anyway’.

The defendant then said 'Mr. LO (PW1) please wait for a while I will ask her to come in for your company in a moment.

The girl subsequently returned with a guest register. On completion of the guest register, the girl again left and returned a short while later. Acts of prostitution then took place."

3. The magistrate expressed his view of the facts in these terms -

"I took into account the judgment of Blair-Kerr J. and also the judgment of Silke J. respectively in the cases cited to me of LEUNG Chor and FONG Yuk-chai. I came to the conclusion that it was apparent that the Crown must establish the exercise of some control. If the defendant were to select one prostitute in preference to another for a particular assignment or if she were to direct the prostitute to a particular room both these instances would connote control or direction.

I considered that Blair-Kerr J.’s comments when considering; the word ‘influence’ are not wholly appropriate to s.138, Crimes Ordinance and decided contrary to his view that a single act of control, or a verbal direction indicating some degree of influence wou1d suffice.

I further decided it would be quite possible for a person to exercise control direction or influence over a prostitute's movements for a single period. of time during the course of one day.

However on the facts surrounding this alleged offence I could not conceive that any of the defendant's actions or statements indicated control, direction or influence to a sufficient degree to warrant finding a case to answer."

4. The magistrate therefore found the defendant had no case to answer and dismissed the charge.

5. The magistrate sets out the two questions to be answered by a Judge of the High Court as follows -

“FIRSTLY WHETHER I was correct in finding that on the facts before me the defendant’s actions or statements could not amount to control, direction or influence

SECONDLY WHETHER I was correct to find that the defendant did not have a case to answer.”

6. I derive no assistance from The Queen v. LEUNG Chor[1] which the magistrate considered and distinguished. In that case, the judge found that, on the facts before him, the one incident of prostitution established did not prove that the girl was under the control, direction or influence of the defendant. The judge did not purport to decide that conduct on a single occasion could never be sufficient to establish control, direction or influence .

7. In R. v. FONG Yuk Choi[2] , the court considered the correct interpretation of the phrase “exercises control, direction or influence over a woman” in section 130(1) (a) of the Crimes Ordinance.

8. Silke, J.A. delivered the judgment of this court in the following terms -

“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'.

9. The facts of this case, as found by the magistrate and set out above, are close to those of the Fong Case[2]

10. The respondent was in control of the premises in which rooms were available for the purposes of prostitution. She introduced the girls to customers to whom she offered a variety of so-called "services". She brought a girl to the customer and asked him if she  was suitable. Acts of prostitution then took place in

11. It is, of course, possible that the respondent may have a valid defence. But I find it difficult to see why the magistrate should have decided that thee was no case to answer, as in my view there clearly was.

12. My answer to both the questions posed is ‘No’.

13. The matter is returned to the magistrate, with a direction to find that there was a case to answer and to continue the trial on that basis.

Mr. T.R.W. Jenkyn-Jones, Senior Crown counsel, for Appellant

Mr. G. Hampton (Gary Mak & Co.) for Respondent/Defendant

[1] [1963] HKLR 823

[2] C.A. 819/83