Tam Shink-lam v. The Queen
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CACC000752/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 752 OF 1974 -----------------
----------------- Coram: McMullin, J. Date of Judgment: 26th September, 1974 ----------------- JUDGMENT ----------------- 1. The appellant in this case appeals against convictions upon five charges arising out of events occurring between November 1971 and June 1974. The complainant, on four of the five charges, a girl called Wong Sau-lan, left home when she was not yet 14 years of age and went to work first of all as a dance-hostess and later as a prostitute. This she admitted in the course of her evidence. Some three months after she had commenced this life she said that at a Tse or "call girl" centre she met the present appellant. It was her story that he was employed in connection with that establishment, as what she described, as a fighter. She struck up an acquaintance with him and her story was that she continued to work as a prostitute partly at the Tse and partly at two separate apartment houses and that in the course of her work there which went on until June 1974 the accused continually cohabited with her, consorted with her and took her earnings from her presumably in his role as an employee of the Tse. She told the Court that in 1974 she tired of this way of living and returned to her parents' home, but after she had returned home the accused phoned her on many occasions and eventually she agreed to go with him to a tea-house where they had a discussion. At the tea-house it would seem that the main item of discussion was whether they should go to a particular night club and, according to her, they set off to go to a night club which he had chosen and they went in the company of a friend of his called Pang. On the way, however, he decided he wanted to change his clothes and he went with her together with Pang to a place called the Paris Apartment House where it was his intention to change. That was on the 20th of July 1974. when they got there, according to the complainant, the appellant sent Pang away and then took back from her a notebook in which bad been recorded names and addresses of his friends, both male and female, and said to her something to the effect that in the past few days he had been playing with her because he wanted to get this book back from her and because by doing so her father would be deprived of any means of knowing her whereabouts. She went on to say that he thereupon asked her to continue to cohabit with him and that he said that if she did not do so she must give him a "quit rent" or "separation fee" of $50,000. She said that she was very frightened and that after this he actually phoned a particular "call girl" establishment with a view to making arrangements for her to resume her former may of life for his benefit. After that, a girl called Chiu Shuk Ping who also worked at the Tse at which she had been working was called to the Paris Apartment House and, according to the complainant, the request to9 continue her work accompanied by the statement that she must pay $50,000 was said in her presence or repeated in her presence (for it is not very clear upon the evidence which of these things happened). This would have been shortly after midnight on the 20th and the evidence of the girl is silent as to what happened between then and 1 p.m. of the following day at which time she made her escape from the Paris Apartment House and returned home and then went and complained to the Police. 2. That is the brief outline of the facts alleged by the Crown and the principal witness was the complainant herself. Out of what she told the Police have arisen the present charges. It was her story, supported by a birth certificate, that at the time she first had intercourse with the accused at the Tse she was not yet 15 years of age. That is the substance of the (A) charge laid against the accused. She also said that be had admitted to her on one occasion in November 1971 that he was a member of the 14-K Triad Society and this formed the substance of the (B) charge. The (C) charge, which is living on the earnings of prostitution of the complainant, refers to those circumstances which have already been described and which on her story took place between June 1972 and June 1974. The (E) charge is the other charge which directly concerns the complainant, and it is a charge of blackmail, contrary to Section 23(1) of the Theft Ordinance. It was supported by her testimony as to what occurred at the Paris Apartment House on the night of the 20th July 1974. Tried together with those charges there was also a charge relating to the girl, Chui Shuk Ping, in which it is alleged that the accused also lived upon her immoral earnings between May 1974 and July 1974. 3. The first of the grounds of appeal urged on behalf of the appellant by Mr. Cheung is directed to the fact that the magistrate does not appear to have directed himself specifically on the necessity for corroboration of the complainant's evidence. He points out that she was, by her own admission, a common prostitute and that moreover her evidence was in certain particulars uneven and untrustworthy. Clearly this is the case. There was for example her hesitation as to what her earnings were. The evidence was never finally cleared up on this point but it would appear that at some time she worked in the Tse plying her trade and that on most occasions she would receive $50 out of $80 charged by the Tse, while at other times, when she was working at Apartment Houses, she would receive $25 only out of $50 returned to the Tse by the Apartment House which $50 was itself part payment out of $80 charged for each guest of the Apartment House. At one point in her evidence she appeared also to say that all that she was given was $30 per day by the appellant. Notwithstanding these and certain other minor deficiencies in the quality of her testimony, it is clear that the magistrate had it in mind that she was a person of doubtful character although it is true that at no point does he direct himself as to the advisibility of seeking corroboration of her testimony. Nevertheless in the course of his findings he is careful to make it clear that he kept in mind(a) the fact that she was a person of doubtful character and (b) that he had considered her evidence with the greatest care. It need hardly hardly be said, I think, that an appellate court is entitled to assume that an experienced magistrate will be aware of cardinal principles of law and it would be wholly unwarrantable for me to suggest that because he has not actually used the word, corroboration, the magistrate was either unaware of the need for corroboration or had overlooked that need. 4. The Appellant did not give evidence. As regards the charge relating to defilement of Wong Sau-lan, [the (A) charge]; the charge relating to living on her earnings, [the (C) charge]; and the charge relating to the claim to be a member of a Triad Society, I see no reasons to come to any conclusion other than that arrived at by the learned magistrate. In respect of the membership of the Triad Society, Mr. Cheung has urged upon me the view that this charge should not be sustained because the evidence concerning it is under suspicion. The reason he gives is that the complainant was only able to say that on one occasion in November which she could remember, though not the circumstances nor the exact date, the accused did reveal to her the fact that he was a member of a Triad Society and named that Society. Originally, Mr. Cheung, following the line taken by counsel who appeared for the accused at the trial, sought to associate this ground of appeal with observations relating to the "res gestae". For myself I do not see the point of that objection. The case cited to me in relation to it was concerned with statements made at or about the time of doing of an act which might be explanatory thereof and is therefore scarcely relevant. I think that the true substance of this complaint was simply that the evidence was odd and unacceptable in that the complainant purported to remember something that happened years ago when that was unlikely in all the circumstances. Again, however, it appears to me that if the complainant's evidence is accepted as true when she says that she took up with the accused only a few months after she left home in November 1971, it would be most likely that, on her first acquaintance with him, he would make known to her who he was perhaps with the purpose of impressing her and letting it be known that he had powerful connections. I see nothing unusual in the fact that she could remember only that much and could not give the context of the circumstances under which this revelation was made or ascribe a date to that event. 5. Insofar as the (A), (B) & (C) charges are concerned, therefore, it does not appear to me that anything that has been urged on behalf of the appellant is of sufficient substance to compel me to say that there has been a misdirection on the magistrate's part or a misreading of the evidence or that there is anything unsafe in those convictions. 6. Different considerations, as it appears to me, arise in relation to the remaining two charges. As to the (D) charge it must be observed at once that the Crown was compelled to rely solely upon the evidence of the complainant, Chiu Shuk Ping, herself. The magistrate rightly observed that under the Section charged, that is Section 17(1)(a) of the Protection of Women and Juveniles Ordinance Cap. 213, the presumption that the accused was living upon this girl's immoral earnings did arise once it was accepted that he had consorted with her and cohabited with her as she alleged. It was thereafter a question of whether that presumption was rebutted. It is quite true, as Mr. Stapp for the Crown pointed out that a magistrate or a judge is entitled, in estimating the quality of any witness's evidence, to say that he accepts in part the witness's evidence and rejects it in part. Nevertheless I take the view that any court must be very slow to reject the major part of the only testimony put forward in support of the Crown's charge when that testimony is, in large measure, favourable to the defence and where there is no independent evidence to negative those parts of it which are unfavourable to the prosecution. Chiu Shuk Ping's evidence was that she had taken up with the appellant in 1974 at a time when she was admittedly working as a prostitute but she said that although she occasionally gave him gifts for his wife and children when she went visiting them that was as far as it went. I take the view that accepting so much of her evidence as showed cohabitation and consorting with the accused while rejecting this freely-given and wholly exculpatory explanation of the nature of their relationship was not, in all the circumstances, justified and I think, therefore, that the conviction upon this charge should be set aside. 7. A similar consideration arises in relation to the blackmail charge. Again, it must be said that the magistrate was quite entitled to accept the complainant's evidence notwithstanding its several deficiencies. The principal point which he had to consider was whether, accepting that evidence, it amounted to the showing of menaces within the meaning of Section 23(1). Mr. Cheung has drawn my attention to a decision of my own in the year 1969 in the Supreme Court, in which referring to earlier decided cases, I took the view that, in respect of the showing of menaces under the very similar provision in the Larceny Ordinance of that day, an objective test must be applied. The test was well expressed in words used by Lord Reading, C.J., in R. v. Boyle (1914) 3 K.B. 339 where at page 344 he said that the threat must be of a nature "as is calculated to operate upon the mind of a person of ordinarily firm mind". A similar test was applied by the Court in R. v. Clear (1968) 1 All E.R. 74 - a case of demanding with menaces - where it was said that in order to satisfy the test it must be shown that the menaces used were of such a kind as to affect the mind of "an ordinary person of normal stability". It appears to me that if one accepts simply what the complainant said about that occasion what was said to her by the accused could well amount to menaces as the magistrate found. If it was the case that she was in truth a girl who had abandoned a life of shame and was endeavouring to break away from it and that she had been lured to the Apartment House and there kept against her will while the accused sought to make her comply with his request and if compliance with that request meant that she must necessarily go back to the life which she wished to abandon unquestionably what was said did amount to a menace and a girl in such a position might well be terrified. Once again, however, it is the witness, Chiu Shuk Ping, who presented the Crown with an awkward circumstance in the course of attempting to prove the charge. Although the appellant never gave evidence upon the trial, Chiu Shuk Ping was called by the Crown and was asked about this occasion in the Paris Apartment House. According to her, the complainant, Wong, was present, the appellant was present, Pang was present and she herself was present and all the conversation was conducted in a light-hearted manner. What she said was: "Everything was said in a joking manner. Wong Sau-lan left just after 2 p.m. the next day. I left after we had had our sleep and when we awakened and did not see her, we left." The complainant's evidence in relation to Chiu was that the menace or the demand with menaces concerning the $50,000 had been made in Chiu's presence. The evidence is a little bit confused at that point because originally she seems to indicate that the demand was made before Chiu came and that Chiu afterwards came in answer to a phone call. At a later point in the evidence, however, she made it clear that the menace either was repeated in Chiu's presence or else it had been made originally in Chiu's presence. Therefore, on that evidence, there was a clear contradiction between the complainant, Wong, and the purported complainant, Chiu (who, of course, for the purposes of the Crown's case, turns out to be anything but a complainant at all). In relation to this evidence the learned magistrate says as follows:
8. That passage is by no means clear. At first sight I assumed that what was being said was that the evidence showed that Chiu had not been present when the demand with menaces was made, but the final words in the sentence just quoted make it clear that the magistrate seems to think that she was. Why, therefore, he should find that Mr. Leong's submission was wrong, simply on the basis of that recital of the evidence, remains mysterious. He does not turn to deal in detail with Chiu's evidence that the conversation was on a light tone and that it conveyed nothing of menace. To my mind it was vital that he should not only have considered what she said about that occasion but, in rejecting what she said have assigned a coherent reason for doing so. What he appears to have done is to have found that he could disregard her evidence on a ground which either makes no sense at all or else is a misconceiving of the evidence. Chiu's evidence was of the greatest importance in respect of this charge. Considering this charge, I am left therefore in the position that I must, as it were, survey the entire circumstances of the occasion giving due weight to what Chiu said about it in the light of Wong's whole story in order to decide whether the mention of the $50,000 could have been of a non serious and jocose or semi-jocose nature. It is well to remember that the complainant had worked for years as a prostitute and during those years, and during the time of her cohabiting with the appellant, had been free to come and go, on her own admission, as she willed when she worked at the apartment houses and when she worked at the Tse. She was never accompanied. She had no difficulty in eventually leaving and going home to her parents. She had never sought police protection against the accused even when, in 1973, the police sought her assistance in investigating a complaint that the accused was an unregistered money lender. It appears to have been a matter of free choice on her part when, having returned to her parents, she eventually went to see the appellant at the tea-house prior to going to the Paris Apartment House. While they were at the Paris Apartment House, apart from the words which she recounted nothing else of a menacing nature seems to have taken place and she appears to have been there in the company of the accused and Chiu, and possibly of Pang as well, from midnight until midday the following day when, according to her, she went into the lavatory and escaped down the front of the building by means of an awning. She admitted that her companions slept for part of the time and that the door was not locked. It seems unlikely that she needed to make so dramatic an exit. She also said that the appellant saw her go into the lavatory and did not try to stop her. This evidence was not referred to in detail by the magistrate. Speaking for myself I am left with considerable misgiving reviewing this evidence as a whole as to whether the circumstances at the Paris Apartment House were really of the nature alleged by the complainant. Although, therefore this Court is bound by the finding that mention was made of the $50,000 and that the suggestion was made that Wong should continue with her previous life, I am far from sure that she was then in such a condition of mind that she thought it was seriously being suggested that she would be held to that way of life against her will and that the accused had power to do so. These misgivings, coupled with the fact that Chiu's evidence was rejected for some reason which does not appear to bear on her quality as a witness, have obliged me to enter upon the domain of the Court of trial and to weigh her evidence as it appears in the record. For these reasons I think that the conviction on the blackmail charge is unsafe and that it must also go. In the result, therefore, the sentences on the (D) and (E) charges would be set aside and the sentences on the remaining charges, (A), (B) & (C) are sustained. Representation: |