The Queen v. Cheung Man Ming

IN THE COURT OF APPEAL

1987. No. 61
(Criminal)

BETWEEN

THE QUEEN

and

CHEUNG MAN-MING

_________________

Coram: Hon. Yang, Ag. C.J. Kempster & Power, JJ.A.

Date of Hearing: 12th August 1987

Date of Judgment: 12th August 1987

_________________

J U D G M E N T

_________________

Power, J.A.:

1. The applicant comes before this court having been convicted on charges of living on the earnings of prostitution, and managing a vice establishment. He was found guilty of the charges after trial and now seks leave to appeal against these convictions.

2. The 1st charge read that he, together with another, between 1st' December 1985 and the end of April 1986 at Kowloon, knowingly lived wholly or in part on the earnings of prostitution of LAW Yuk-ling.

3. The first ground of appeal is that the trial judge when assessing the credibility of Miss Law, who was the first prosecution witness, failed to take into account the inconsistencies that existed between her evidence and that of Miss NGO Wai-kuen, the second prosecution witness, who he found was a basically truthful witness. Miss Law, who was the first witness, said, when giving evidence, that she was taken for the first time to a flat near Lee Ka Yuen by the appellant and the 2nd defendant in April of 1986 and that she worked there for a period of 4 days. She reiterated under cross-examination that the first time she had been to that flat was in April 1986. Miss Ngo, when she came to give evidence as the second prosecution witness, said that she had been told by Miss Law that she, Miss Law, had been detained from April 1985 in a flat by a man called So Ming for 4 days and that this flat was near the Astor Theatre. Miss Ngo went on to say that Miss Law told her that during those 4 days she had been to a flat near Lee Ka Yuen. Mr. Tse, who appears for the applicant, submits that this must have been the same flat and that therefore Miss Law must be lying when she said that she was first taken there in April 1986. Mr. Tse submitted to the trial judge that there was an irresistible inference that this was one and the same flat.

4. The trial judge clear accepted that this was evidence properly before him. While we have some doubt as to whether this was so we are prepared for the purposes of this appeal to approach the matter upon the basis that it was. Having done so we are unable to see anything that would lead us to the irresistible inference that this must have been the same flat, like the trial judge. The trial judge clearly accepted that Miss Law had told Miss Ngo that she had been taken to a flat near Lee Ka Yuen in April 1985 but he was satisfied that Miss Law was telling the truth overall and was therefore satisfied that the flat was not the same one as that to which she was later taken in 1986 by the applicant and the 2nd defence witness. We are satisfied that there was nothing of merit in this first ground of appeal.

5. The second ground of appeal was that the learned trial judge erred in law in that he failed to treat Miss Law as an accomplice and failed to warn himself of the danger of convicting on her uncorroborated evidence.

6. Mr. Tse has submitted that she must be treated as an accomplice as there was no evidence of any degree of coercion in relation to the work done by Miss Law at the direction of the applicant. He submits that this was, to use his words, “a joint enterprise”. We find ourselves quite unable to take that view. We are satisfied that the evidence, accepted by the judge, establishes that Miss Law was under a real measure of coercion and that she became a prostitute on the occasion referred to in the first charge because of this coercion. We have been referred to a number of cases commencing with the well-known case of R. v. Archibald King[1] which was followed in the unreported Hong Kong case of R. v. FONG Yuk choi[2]. It is not, however, necessary to canvass these cases which dealt with the circumstances in which prostitutes are to be held to be aiders and abettors to other offence, when dealing with this ground as we are satisfied that Miss Law was, upon the evidence, not an accomplice and that the learned judge was, therefore, quite right to treat her evidence as he did and that there was no necessity for him to give himself any warning in this regard.

7. We turn to the appeal against, conviction on the charge of managing a vice establishment.

8. Mr. Tse's first ground of appeal in this regard was that the learned judge erred in that he failed to treat a Miss Fok, a Miss Wong and a Miss Yeung as accomplices and hence failed to warn himself of the danger of convicting on their or any of their uncorroborated evidence. These three girls, according to the evidence, worked as prostitutes at the direction of the applicant in an enterprise operating from a flat in Jordan Road. There is no dispute that they all worked voluntarily. The trial judge clearly took the view followed the case of R. v. FONG Yuk-choi,[2] referred to above, that they were not accomplices and that he was not therefore required to give any warning. In R. v. FONG Yuk-choi[2], where the charge was exercising control over a woman for the purpose of prostitution, Silke, J.A., when considering whether the girls were accomplices, stated:

“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 accomp1ices in the sense of participles criminis.”

9. As regards Miss Wong it was argued by Mr. Tse that she was an accomplice because there was, in his submission, evidence to establish that she encouraged the applicant to set up the enterprise. We find nothing in the evidence to establish that she gave any such encouragement. Mr. Tse goes on to argue that even if this be not so the fact that all three girls voluntarily worked in the enterprise, continuously received orders and were obedient to the managers of the enterprise and collected money from the customers gave such encouragement to those who conducting the management as to make them accomplices.

10. He referred, when making this submission, to R. v. Clarkson[3] and read the headnote therefrom. When, however, this headnote is read against the background of the facts in that case, which are markedly different from: those in the present case; we are satisfied that we can gain little assistance therefrom.

11. Mr. Tse went on to submit that the case of R. v. Yuk-choi[2] can be distinguished from the present case because the question of encouragement by continued working in the enterprise was not considered in that case.

12. It is essential, in our view, to bear in mind the nature of the charge and the intention of the legislature when enacting the section which creates the offence when considering whether the girls were accomplices. The charge was that the applicant and another person managed the said premises a vice establishment.

13. Section 139 of the Crimes Ordinance Cap. 200 states:

“any person it who on any occasion –

(a) keeps any premises … as a vice establishment … shall be guilty of an offence.”

14. The object of the section is in our view clear. It is to strike at persons who actively conduct vice establishments. We are satisfied that prostitutes who work at the direction of such persons cannot properly be said to be actively participating in the management so as to make them participes criminis in the offence of "keeping". They are in no different position to that of workers 1n legitimate industries in whose case no one would suggest that a worker who obeys the orders of his superiors somehow thereby participates in the management. That being so we are satisfied that the authority of R. v. FONG Yuk-choi[2] should be followed and hold that these girls were not accomplices and that the learned trial judge was quite right in approaching their evidence as he did. We feel that we should add that the learned judge was encouraged by counsel when they addressed him to take the course he did, i.e. to regard the girls not as accomplices but as witnesses whose evidence must be treated with caution and this he clearly did.

15. Mr. Tse stated that if we arrived at the above conclusion he could not pursue his argument on grounds 5, 6 and 7. That being so we are satisfied that is nothing which calls for our interference in these convictions and the application will therefore be dismissed.

Mr. I.G. Cross & Mr. W.S. Cheung (Crown Prosecutor) for the Respondent.

Mr. Joseph Tse (David K.W. Tsang & Co.) for the Applicant.

[1]  (1914) 10 Cr. App. R. 117

[2]  (1983) No. 819

[3]  (1971) 55 Cr. App. R. 445