R. v. Yeung Wai Shing

CACC000075/1996

IN THE COURT OF APPEAL

1996, No.75
(Criminal)

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Coram: Hon. Power, Ag. C.J., Liu and Mayo, JJ.A.

Date of hearing: 15 January 1997

Date of delivery of judgment: 4 March 1997

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant along with four others faced a number of charges which involved a Miss Wong Suet-ching, a young girl aged 15, who, having run away from home on 19th January 1995, was exploited and forced into prostitution.

2. The applicant, who was D4 at trial, faced one charge of detention of a person for the purpose of an unlawful sexual act (charge 2), one charge of living on the earnings of prostitution (charge 4), and one charge of managing a vice establishment (charge 5). He was found guilty of charges 2 and 5 and not guilty on charge 4. He now seeks leave to appeal against his conviction on charges 2 and 5.

3. Miss Wong gave evidence that she was introduced by her boy friend, a man nicknamed "To Chai", to D1 a procurer who said that he would be able to get customers for her. Through D1 she met D2 who introduced her to customers with whom she had sexual intercourse. This continued for about two weeks until she eventually told D1 that she did not wish to continue working as a prostitute. Two or three days later in early February 1995, D2 took her to the Wa Lia Villa in Sai Yeung Choi Street and she was taken to a room outside the main entrance where she met D3 and D4. She had a discussion which she "believed" was to the effect that she should live there and she started to live in a room with D2. Customers were brought to her in that room during the following three days for sexual intercourse. When they arrived D2 would leave. She said that he paid her $100-$200 per customer. She said that on the third day she told D2 in the presence of D3 that she wanted to leave and to stop working as a prostitute. D2 said that she had promised to work for them and she must continue. Miss Wong said that immediately after this conversation the door to her room was padlocked and that she was kept in that locked room for about a day until the morning of 12th February. She said that during this time a person connected with the villa brought a customer to her to have sex but she refused. She said that while she was locked in the room both D4 and D5 came in to fetch things on separate occasions. She said that each of them had had to unlock the padlock and remove the chain before coming in. On the morning of 12th February, D1 arrived, unlocked the room and she was free to go.

4. There was evidence from Sgt.21535 that he went to Wa Lia Villa on the evening of 12th February and saw D4 and D5 behind the counter. He said that D4 said that he was the person in charge and D5 said he was the time keeper of the rooms. He said that D4 had said that the adjacent room where Miss Wong claimed to have been detained was theirs and produced a key which fitted the padlock to the door from a drawer of the table. D4 did not give evidence.

5. It is important to look at the actual evidence given by Miss Wong and the sergeant. Evidence-in-chief of the victim as to D4's coming to the room was as follows:

"Q. For how long were you locked in the room before you were allowed Out?

A. For about one day.

The door was locked by the use of the padlock and chain in photo P1(2).

When I was locked there for about a day the people who worked in Wa Lia Villa came in to see me. If I can recognise them. I can't recall the name of the person. I could recognise him if I saw him again. He is in Court. The last two (D4 and D5).

Q.. What did D4 come to do?

A. He came in only to get something.

Q. How did he have access to the room as it was locked?

A. He opened the padlock and removed the chain and came in."

This evidence was not challenged in cross-examination.

6. The sergeant gave evidence that he had gone to the villa with a police party at about 10:35 p.m. on 12th February 1995. He said:

"I produce my police warrant card and told them I was a police officer. I asked who the person in charge was. D4 told me he was the person in charge.

Then I asked D5 what he was doing there. I said to D5 'Well how about you?' D5 said he was working there being employed. D5 said that he was responsible as time keeper for the rooms.

Usually in a villa the room time keeper is responsible for the renting of the rooms by customers and was responsible for the accounts and collection of money.

Q. After D5 told you this did you ask anything else?

A. I asked D4 if the adjacent room belonged to them I mean the adjacent room at which there was a metal grill. I asked if that room belonged to them. D4 said the room belonged to them. I had had a look at the room before entering the villa. I had not looked inside the room because outside the room there was a padlock with a chain.

Ex.P1 photo 1 and 2 show the room I first saw it. In photo 1 the door of the villa we entered is where the light is on. I asked D4 if they had got any key to open the door of that room which was shut at that time.

D4 said 'yes'. Then he opened the drawer of this cabinet . He opened a drawer of the table and he took out the key.

P23 with a ring was the one he took out. I took the ring. At that time Inspector Lee Chi-hang arrived with the other team members and the other three defendants. Then our team made enquiries. I together with a policeman took D4 to the adjacent room to see if the key could fit the padlock. It did fit.

After the padlock was opened I pushed open the metal grille and went in to have a look."

7. Under cross-examination he admitted that he had not made any note of the conversations about which he gave evidence but had relied solely upon his memory. The room to which the sergeant went which had been padlocked had been identified by Miss Wong as the room in which she was kept.

8. When dealing with the evidence of Miss Wong, the judge said:

"In considering the evidence of Miss Wong I bore in mind that she was a young girl with a chequered past. She admitted having run away from home twice prior to the time she ran away on 19th January 1995. On both the two prior occasions she had engaged in prostitution. The two people with whom she claimed that she stayed immediately after leaving home on the 19th January (named 'Tracy' and 'Ah Yat') were the same people who had assisted her to get work as a prostitute on the previous occasions, although she claimed that on this third occasion she did not engage in prostitution while she was with them. Bearing in mind these factors I was mindful of a risk that she might attempt to incriminate innocent people in an attempt to protect the real culprits. I therefore approached her evidence with caution. She gave evidence over an extended period and was cross-examined by three defence counsel. I was satisfied that she was a truthful witness giving as accurate on (sic) an account as she was able after almost a year of her dealings with the defendants. I found that any vagueness or inconsistency in her evidence was not the result of lack of frankness on her part but due to the passage of time."

9. As to the evidence of the sergeant, the judge said:

"I accepted the evidence of Sergeant 21535 that D4 and D5 were behind the counter of the Wa Lia Villa when he entered the villa at about 10:30 p.m. on 12/2/95 and that a key (Exhibit P23) to the padlock of the adjoining door was found in a drawer at the counter. (This latter fact was one of the admitted facts). Bearing in mind that he was purely relying on his memory as to what D4 and D5 had said about their respective roles in the Wa Lia Villa I found I could not be sure that his recollection of exact words spoke (sic) by each of the two defendants was accurate. I did accept however that both D4 and D5 said words indicating that they were members of the staff of the Wa Lia Villa."

10. When dealing with the evidence against D4 the judge said that he was satisfied that Miss Wong had met D4 when she first arrived at the villa and that he was involved in a conversation which Miss Wong said "should have been" about her living there. He accepted that Miss Wong had seen him at the reception desk when she was using the telephone and that he was in possession of a key to her room when he unlocked the padlock and came into the room to fetch things. He was also satisfied that he was behind the counter when Sgt.21535 arrived at the villa and that he had said words to the effect that he worked there.

11. As to charge 2 he said:

"I accept both men entered the room at different times during her period of incarceration and would have had to unlock the padlock and remove it from the chain before sliding open the metal door. On the evidence before me I do not believe that either of them would have been entrusted with the key by people responsible for Miss Wong's incarceration unless D4 and D5 were party to her detention. The manner in which the door was padlocked with the use of a chain would have made it obvious to the defendants that she was being detained there against her will. Bearing in mind my finding that the object of Miss Wong being at the villa was for prostitution, that staff of the Wa Lia Villa (albeit not D4 and D5) were providing her with customers and that D4 and D5 was also staff of the villa the inference is irresistible that D4 and D5 were party to detaining her with the intention that she should do an unlawful sexual act (i.e. commit sexual intercourse as a prostitute with a man who was not her husband). I find both D4 and D5 guilty of Charge 2."

12. Charge 5 against D4 had originally been keeping a vice establishment but it was amended in the course of the hearing to assisting in the management of a vice establishment. As to that charge the judge said:

"For reasons I have mentioned earlier I found that both defendants were members of the staff of the Wa Lia Villa which were 'premises kept as a vice establishment'. I am aware that it is not every member of the staff at a vice establishment that assists in its management. They must have 'something a cut above' purely manual or routine duties such as cleaning the stairs and answering the door.

When a prostitute is being detained against her will in a vice establishment for the purpose of ensuring she continues her prostitution those party to detaining her for that purpose must be assisting in the management of the premises. For that reason I find D4 guilty of Charge 5 ....."

13. Mr. Delaney, who appears for the applicant, argues firstly that the judge erred in failing to warn himself of the danger of convicting on the uncorroborated evidence of the victim. He submitted that the witness was a victim of a "sexual offence" and that a corroboration warning was required. It is argued in the alternative that, if Miss Wong was not strictly in the category of a victim of a sexual offence, the nature of the offence was so closely analogous thereto that a corroboration warning should have been given. In this he relies on R. v. Spencer [1978] 1 AC 128. We do not need to look in detail at R. v. Spencer. It suffices to say that we are satisfied that the judge gave a careful and fully adequate warning to himself as to the evidence of the victim. There is nothing in this ground.

14. Mr. Delaney then argues that there was no evidence or no sufficient evidence upon which the judge could find that D4 was a party to detaining Miss Wong with the intention that she should do an unlawful sexual act. He submits that the only contact with the victim was upon her arrival at the villa and when D4 went into the room having unlocked the padlock.

15. He submits that the evidence that D4 had unlocked the padlock and went into the room is suspect and should not have been relied upon. We do not agree. It was clear evidence and it stood unchallenged. There was no reason why the judge should not have acted upon it as he did.

16. He submits further that there was not sufficient evidence to establish that D4 knew that the victim was being detained with the intention that she should do an unlawful sexual act.

17. The judge had evidence that D4 was a staff member at the villa, that he had been there when the victim arrived and that he had been behind the desk four days later when the police came to the premises. He had evidence that established that D4 was a party to the incarceration of Miss Wong. He had evidence that the victim had received three customers in the villa in the three days preceding her refusal to accept more customers and her incarceration. He had evidence that during the period of incarceration another customer had been brought to her by a person from the villa who was not one of the defendants. He was satisfied from all of this that "the inference is irresistible that D4 and D5 were party to detaining her with intention that she should do an unlawful sexual act".

18. When examining whether or not this inference could be properly drawn it must be remembered that no evidence came from D4. It was, we are satisfied, an inference to which the judge was irresistibly and properly driven by the application of his common sense to the facts before him. The circumstances were not merely suspicious as has been argued. They were such as to lead with certainty to a conclusion that D4, who was clearly a staff member of the villa during all of the relevant time, must have known exactly what was taking place therein and that D4 was party to detaining Miss Wong with the intention that she should do an unlawful sexual act.

19. The application as regards the 2nd charge is dismissed.

20. As to the 5th charge, Mr. Delaney submits that the judge was in error in finding that the Wa Lia Villa was a vice establishment as there was no evidence to establish that the villa was used wholly or mainly for or in connection with the organizing or arranging of prostitution. He submits that the only evidence was as to the use of one room which was outside the confines of the villa proper.

21. Mr. Saw, who appeared for the Crown, conceded that he was in some difficulty in supporting the conviction on this charge. We are satisfied that there was no sufficient evidence to establish that the villa was used wholly or mainly for the purpose of prostitution and that this conviction must, therefore, be quashed.

22. The hearing of the application as regards the 5th charge is treated as the hearing the appeal, the appeal is allowed and the conviction on the 5th charge is ordered to be quashed.

Representation:

Mr. D.G. Saw, S.A.C.P. (Crown Prosecutor) for the Respondent.

Mr. Michael Delaney instructed by Messrs. C.K. Tse & Co. for the Applicant.