Li Kei v. The Queen
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CACC000632/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 632 OF 1974 -----------------
----------------- Coram: Li, J. Date of Judgment: 16th September, 1974 ----------------- JUDGMENT ----------------- 1. The appellant is convicted of the offence of living on earnings of prostitution contrary to paragraph (a) of sub-section (1) of Section 17 of the Protection of Women and Juveniles Ordinance, Chapter 213. The particulars of offence are that the appellant, on the 28th day of March, 1974, and on other days between that date and the 22nd of April, 1974, knowingly lived wholly or in part on the earnings of MAN Sau-han, otherwise known as Mei Kei, a prostitute. 2. The evidence in support of this conviction may be summarised very briefly as follows. MAN Sau-han was a known prostitute operating in a call-girl establishment. Some time on the 28th of March, or on or about that day, she was escorted by two of her boy-friends, who obviously kept her under their control, to the premises known as Flat 40 in Kwong Wah Street Kowloon. There she was told to work as she did before. She was introduced to the appellant as the boss of the premises. Between the 28th of March and the 22nd of April she operated as a call-girl in such premises and she saw the appellant going frequently to the premises to look at the statement of account of the day and to take money. She said that there were other girls operating in the same establishment and there were telephone operators assisting them or introducing them to entertain people in other parts of the Colony. When they received the money, the money was handed over to the telephone operator. There was evidence by another witness called KWAN Sui-yee who said that the appellant used to go and look around and check; but there was no conversation. 3. The appellant's explanation to the receipt of money was this: that he knew of a person by the name of LEI Ping-wah who operated the establishment at Flat 4C of the premises. LEI Ping-wah owed him a thousand dollars and told him to take fifty dollars a day as a repayment of this debt. That was why he had been there about thirteen or fourteen times in all during that period. His sole business was to obtain repayment of the debt he loaned to LEI Ping-wah. He said he had no knowledge of what was going on amongst the girls; he was not in control of the premises; he was not a tenant of the premises, and he had not been running such an establishment. 4. The finding of the learned Magistrate is to be found in paragraph 2 of the statement of facts in which he found that:
5. Pausing at this stage, I find there is ample evidence for the learned Magistrate to come to such conclusions. However, he proceeded further. He found that there was no evidence to show that the appellant had in any way taken any part in compelling MAN Sau-han or, indeed, the other girl, to take part in the business and, having become involved, to remain under control of the syndicate. That again, I agree, is true. However, he proceeded to find that there was overwhelming evidence to show that the appellant had received a part of the earnings of MAN Sau-han but that the evidence of the other girl, KWAN Sui-yee, to the effect that the appellant had received part of Kwan's earnings was not conclusive to justify a conviction. 6. The first ground of appeal against conviction is this: that the learned Magistrate, by convicting on the basis of his finding contained in paragraph 12(e) of page 21 of the record, erred in law by failing to give any or any sufficient weight to that constituent element of the offence requiring knowledge on the part of the appellant. The second ground of appeal is that the learned Magistrate erred in law by failing to consider properly or at all the burden of proof on the Crown in criminal cases in the light of the facts that:
7. Looking at the provisions of Section 17, sub-section (1) paragraph (a), the provisions are as follows:
Thus one vital ingredient of this offence is a knowledge. It is not sufficient to prove that a person lived on the earnings of prostitution but he must knowingly live on the earnings of prostitution. In other words, he received the benefit from such prostitution with full knowledge of prostitution. Thus it is incumbent upon the Prosecution to prove knowledge. 8. In this case, the learned Magistrate, having found there was no evidence that the appellant had in any way taken any part in compelling the girl, MAN Sau-han to take part in the business and, having become involved, to remain under the control of the syndicate. As such the provision in sub-section (3) of section 17 of Chapter 213 does not apply. Thus the Prosecution must rely on some other evidence to prove his knowledge. In this particular instance such proof has not been forthcoming and the learned Magistrate has ignored this element of the provision and made no finding on it, although he said there was overwhelming evidence that the appellant had received part of the earnings of P.W.L, namely, MAN Sau-han. He has never expressly found that he knowingly received such part of the earnings. In the circumstances I find that although the facts gave rise to grave suspicion, as learned Counsel for the appellant put it, yet it has never shown the full offence or, in other words, all the ingredients of the offence. 9. I do not wish to quote the judgment in detail. But there is a case decided on appeal in 1963 Hong Kong Law Reports, 825, Leung Chor versus the Queen, in similar circumstances. Mr. Justice Blair-Kerr, as he then was, gave a detailed consideration as to the requirement of proof on every ingredient of the offence under section 17 of this Ordinance. In the circumstances, the conviction must be quashed and the sentence must be set aside. 10. I would have stopped here but for the fact that I wish to comment on the sentence which has now become academic. I find that in a case of this nature where a person has a clear record and where the element is one of agreed obviously a fine should be sufficient. I do not find, in the circumstances that the learned Magistrate has erred in principle as far as sentence is concerned. The offence created under section 17 of chapter 213 is one of misdemeanor the maximum sentence provided for it by section 29 of the same Ordinance is one of two years imprisonment. However, section 97 of the Magistrates Ordinance provides that:
11. If the Magistrate had more room to manoeuvre, to impose a line in substitution to a maximum of two years' imprisonment, I would have thought the fine should be much heavier than $2,000. The sum of $2,000 is absolutely ridiculous. It is not my function to criticise the legislature. My function is merely to administer the law. But when I see some provision which is so absurd I find it is my duty to make such observation. 12. I have forgotten to say that having quashed conviction the sentence is set aside, the appellant is discharged. The bail money, of course, will have to be repaid to the appellant. Representation: |