The Queen v. Leung Cheong

HEADNOTE

Living on the earnings of prostitution – Whether a man can be charged and convicted on the facts of a single incident.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 568 OF 1987

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BETWEEN

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Coram: Hon. Wong, J.

Date of hearing: 28th July, 1987

Date of delivery of judgment: 6th August, 1987

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JUDGMENT

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1. The appellant was convicted, after a trial, before a magistrate of the offence of living on the earnings of prostitution contrary to section 137(1) of the Crimes Ordinance, Cap.200. He was sentenced to 6 months imprisonment. He now appeals against both conviction and sentence.

2. The facts were that at about 9:50 p.m. on 3rd May, 1987 two police constables, acting on instructions and together with marked banknotes given to them by their superior, visited No.81 Parkes Street, first floor, front portion, Kowloon. On arrival, they were greeted by the man in charge of that place who was D1 in the charge sheet. D1 asked them what kind of girls they would like to have and the officers asked for the price for two Philipino girls and were told that it was $250 each, which included the services of bath, playing the flute and knocking off. After the terms were agreed, D1 made a phone call and about ten minutes later the doorbell rang and D1 opened the door. In came the appellant, followed by Lourdes, a Philipino woman. The appellant was carrying a plastic bag and both he and Lourdes stood in the living room. D1 asked the two officers “who first?" PC20058 said he was and D1 took him and Lourdes into the first room. D1 then asked the officer for payment and this officer gave him three marked $100 banknotes and received $50 change. After D1 had left the room, Lourdes undressed and at that point of time PC20058 revealed his identity.

3. After D1 had taken PC20058 he returned to the sitting room where the other officer PC19697 PW3, and the appellant were still staying. D1 asked the appellant why it took him so long in bringing a girl to which the appellant replied: "We shall be working until meal time and I have brought along my food to consume here".  D1 then took PW3 to another room, told him to watch television and a girl would be brought along very soon. A short while later, D1 came with a Philipino girl and D1 indicated that the girl could perform additional services for $50 more. PW3 agreed and paid D1 $300 with marked banknotes.

4. Subsequently, the appellant was arrested and two $100 marked banknotes were found inside one of his trousers pocket.

5. The appellant gave evidence. He said that he had known D1 for about six months and regarded him as a close friend.  At about 9 p.m. he telephoned D1 to invite him out for a meal.  But D1 told him that he was too busy and could not go out but he D1 had the $500 to repay the appellant which D1 had borrowed from the appellant and D1 asked the appellant to come to his place.  It was his evidence that he knew D1 was the keeper of a vice establishment. He went to the premises and D1 opened the door for him. He realized that a Philipino woman entered after him but denied knowing her or bringing her along for the purpose of prostitution. He said that the $200 marked banknotes were among the $500 D1 had repaid him and in fact he himself had something like $2,100 when he arrived at the premises.

6. On this evidence, the learned magistrate found that the charge of living on the earnings of prostitution was proved against the appellant.  He relied as authority on the decision in The King v Hill [1914] 2 K.B. 386 to convict the appellant on the facts of a single incident.

7. In that case, Hill was charged with four counts of living wholly or in part on the earnings of prostitution, each count relating to one day. Only one count was put to the jury and he was duly convicted of that count.  It was argued by his counsel, Mr. Harris that:

“The offence aimed at by the statutes is the pursuit of a particular mode of life. The words by which it is described connote habit and a continuous course of conduct. To charge a man with living on the earnings of prostitution on one day is absurd.  "Living" cannot be judged by the acts of one day. If the evidence were confined to the acts of one day, no jury could convict. In these cases evidence of acts extending over a period is necessary."

8. This argument was rejected by Bankes J who delivered the judgment of the Court of Criminal Appeal:-

"It is said that the indictment is bad because it charged the appellant with living on the earnings of prostitution on a day named, and not on divers days. It is also said that evidence is not admissible on the indictment as laid of anything done on any day, except the day named. In our opinion there is no substance in either objection.”

9. Counsel for the appellant submitted before me that Hill could only be regarded as authority to charge but not as authority to convict on the offence of living on the earnings of prostitution. I must confess that I am unable to follow his argument, because to my mind if a man can be charged with that offence there is no reason why he cannot be convicted of it otherwise there is absolutely no point to charge at all.

10. Another case cited before me is a decision of Blair-Kerr, J in Leung Chor v. The Queen [1963] HKLR 825 which was relied upon heavily by Counsel for the appellant. The facts, taken from the headnote, were that the appellant was charged with directing the movement of a prostitute in a manner showing that he was aiding her prostitution and thus "deemed to be knowingly living on the earings of prostitution."  He was found guilty by a magistrate of an offence under section 17 of the Protection of Woman and Juveniles Ordinance, 1951 and sentenced to imprisonment. Section 17 was in identical terms as section 137 of the Crimes Ordinance, Cap. 200.  It was not disputed that the female in that case was a prostitute nor that the appellant had introduced her to a male customer, with whom she went into a bedroom in the appellant's flat. But the evidence showed that the whole consideration payable by the customer was to go to the prostitute, and there was no evidence to show that there was any standing arrangement between her and the appellant, or that the appellant at any time had directed her movements.  It was held, inter alia, by Blair-Kerr J:

(1)        "In charges under S.17 what has to be proved is that the accused was living, either wholly or partly, directly or indirectly, on the earnings of one or more prostitutes";

(2)        "This necessitates clear proof (1) that the girl or girls are prostitutes and (2) that in some way the accused was benefitting substantially from their earnings so that a reasonable tribunal could conclude that he was living at least partly by those earnings”;

(3)        The offence created by s.17 envisaged conduct by an accused over a period of time and a person could not properly be charged under it on the facts of a single incident.

11. The judgment had been recited before me by counsel extensively and I have no desire to go through it again. The learned Judge dealt with The King v Hill by referring to the portions of the argument of Mr. Harris and the judgment of Bankes J to which I have already referred. He then went on at page 835 and said:

"Ordinarily, however, the charge is framed as covering a period of days, weeks, months or even years. For example in Calvert v Mayes [1954] 1 All E.R.41, the period mentioned in the charge was October 1952 to April 1953 and in R v Pickford [1914] 10 Cr. App. R.269, the period was January 1913 to March 1914.  In the recent case of R v Dr. Stephen Ward, Times Newspaper of 4th July, 1963, the period in one charge was 1st June, 1961 to 31st July, 1962. In another charge the period was 1st September, 1962 to 31^st December, 1962.  In that case there was also a charge of conspiring to keep a brothel and the period mentioned was 1st June, 1961 to 31st December, 1962.  In R v Davies, 1963 Sol. J.78, the case against the accused depended on the observations of three police officers that the accused had permitted a prostitute to have intercourse with various men in his taxi on three occasions. In R v Lawrence [1963] 47 Cr. App. R. 72, the prosecution had observed the accused for two nights only, but there was evidence that the accused had directed or influenced prostitutes to have intercourse with certain men, (he directed the girl thus: "Charge the Indians £2") he was observed to take part of her earnings from her prostitution immediately after acts of prostitution and when he accepted his share on one occasion he was overheard to say:-

'Ta, Mary, you are the best brass I've ever had.”

From the statement of facts given at page 42 of [1954] 1 All E.R. it is obvious that in Calvert v Hayes the police had done a great deal of painstaking investigation over a long period and that they had assembled a formidable body of evidence in support of their case.

12. It is clear from the above passage, the conclusion reached by Blair-Kerr J was not based on any general principles of law but on the several cases where the periods of the charges covered weeks, months and even years. Just before he referred to Hill's case the learned judge had this to say at page 834 and I take what he said here to be the true ratio decidendi of his judgment:

" But even supposing there had been evidence that the appellant was to receive a part of the girl's fee that night, is this, sufficient evidence for any court to say on this charge that the appellant was living on that girl's earnings?  I do, not think that it would have been sufficient. What the prosecution seems to have failed to appreciate in this case is that it must be very rarely that a court can possibly be satisfied that an accused person is living on the earnings of prostitution if the evidence called related exclusively to the behaviour of one woman on one occasion on one day. True, there are cases in the books where the offence is alleged in the charge to have occurred on one day.”

13. I underline and emphasize the words it must be very rarely and in my judgment this is the whole crux of the issue. The fact that a thing is rarely done is not the same thing that it, cannot be done. There may be many reasons why few cases involving one single transaction have been brought and it is not necessary for me to go into them. Furthermore whether a court can be satisfied or not in such a situation is, not a question of law but entirely a matter of evidence which is to be decided on an individual basis depending on the merits in each and every case. In my judgment, the King v Hill is good law and should be followed.

14. I derive some assistance on the meaning of the word “living” from the judgment of Page Wood V.-C. in the old case of  Webb v Byng [1856]  2 K.& J. 669 which dealt with the construction of a will.

“The devise is in these terms: 'I give to my great nephew Henry Webb Byng the livings of Quendon and Chickney, should he like the profession and be qualified for them, or to William Crammer Byng.'   Now, the word 'living' is ambiguous. It is sufficient to pass the advowson. On the other hand, it may be restricted to a single presentation: the law does not determine which is its meaning, and the point must be ascertained from the context.  Referring in this will to the context, it is clear that, by the word 'livings', the textatrix intended to pass not the advowson, but only a single presentation. The words 'should he like the profession and be qualified for them', show an intention to confer on the devisee a personal benefit; and that could only be effected by the devisee being himself presented to the livings. I must, therefore, hold that the devise of the livings is confined to a single presentation, and does not extend to the advowson”.

15. Although Webb v Byng is a civil case, it does, in my view, have some relevance on the proposition that a man can live on the earnings of a prostitute derived from one act of prostitution only.

16. Counsel for the appellant also complained that his client was convicted by the learned magistrate on coincidences: for instance the prostitute entered the premises behind the appellant and marked money was found in his possession when he was arrested. Counsel said that this was all the evidence against his client. But he is wrong. He has missed out the most important piece of evidence against the appellant. It came from PW3, P.C.19697 and is to be found at page 13 of the appeal bundle and this is what transpired:

"Ho came out to the sitting room after leading P.C.20058. Ho did not say anything to me. I heard Mr. Ho speak to D3. Mr. Ho asked D3 "why were you so late in bringing the girl.” Defendant then replied "We shall be kept busy working until meal time and I have brought along my food to consume here."

17. This is not only direct but also the most damning evidence against the appellant. It goes further to suggest that the appellant was deeply involved in the business.

18. For, the reasons I have given, I have arrived at the conclusion that the appellant was properly convicted of the charge of living on the earnings of prostitution and accordingly his appeal against conviction must be dismissed. Counsel for the appellant may now address me on sentence if he so wishes.

Mr. Buchanan (Haldane, Midgley & Cheung) for Appellant

Mr. Samuel Leung & Mr. Kelly for the Crown