HKSAR v. Lee Ho Yan

HCMA 640/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 640 OF 2009

(ON APPEAL FROM KCCC 1333/2009)

----------------------

---------------------- 

Before:  Hon Beeson J in Court

Date of Hearing:  2 February 2010

Date of Judgment:  24 February 2010

----------------------

J U D G M E N T

----------------------

1.The Appellant was found guilty in the Magistracy of one count of Soliciting for an Immoral purpose, contrary to section 147(1)(a) of the Crimes Ordinance, Cap. 200.  She was fined $5,000.  She appealed against conviction only.

BACKGROUND

2.There was only limited dispute about the evidence.  The Appellant advertised on the Internet that she provided sexual services.  A police officer, PW1, spoke in a chat room with the Appellant and she confirmed that she offered sexual services.  Some days after that another police officer, PW2, telephoned the Appellant and made an appointment to meet her with a view to the Appellant providing sexual services.

3.The next day PW2 met the Appellant outside an MTR station exit.  There, it was alleged, a conversation ensued between the officer and the Appellant about the nature of her services, their cost and the place where such services would be provided.  After that the Appellant led the officer towards the San Diego hotel.  The Appellant was arrested by another police officer in the vicinity of the hotel.

4.At trial the basis of the defence was that whatever might have passed between the Appellant and any police officer before the meeting, the rendezvous at the place and time set out in the charge was prearranged and there was no solicitation at the meeting.  The Appellant challenged the content of the conversation which PW2 said took place, saying that no details were discussed as the officer alleged and that their conversation simply confirmed what had been agreed previously.

5.There was no dispute about the Appellant’s identity; nor was there any suggestion that the meeting place was not a public place.

6.Perfected Grounds of Appeal:

“Ground 1

This ground alleged that the Magistrate erred in law in ruling that section 147(l)(a) of the Crimes Ordinance, Cap. 200 applied to the facts of the present case.  Further, or alternatively, the Magistrate had failed to properly direct himself as to whether there was a nuisance or annoyance, actual or probable in the present case.

Ground 2

The Magistrate erred in law in failing to consider sufficiently or at all the fact that in substance the Appellant had only solicited on the Internet which is not a public place (the offence thus was not made out).

Ground 3

The Magistrate erred in law in finding that there was solicitation when the Appellant met the undercover police officer.  Further, or alternatively, the Magistrate failed to properly construe the meaning of “soliciting” and thus had found, wrongly, that there was soliciting after they met.

Ground 4

In all circumstances, the conviction was unsafe and unsatisfactory, or there was a lurking doubt.”

EVIDENCE

7.PW1, a police officer, gave evidence about the Appellant’s Internet advertisement and his consequential contact with the Appellant by telephone, MSN and Internet.  He agreed that he knew the nature of the services that the Appellant offered and that he was trying to convince her that he could be a customer.  He agreed too that he knew the price of such services and the general location, or locations, where such services would be provided.  Later he passed the Appellant’s details to PW2 who arranged a meeting by telephone.

8.It was PW2 who met the Appellant at the MTR station exit. His account of the conversation that took place between him and the Appellant was challenged and its admissibility was assessed by the Magistrate by the way of the alternative procedure. PW2 claimed that the Appellant had introduced herself and asked “Is it going to be done?”.  PW2 understood this to be a reference to making love.  He replied “I’m easy.  The Appellant continued, “$1,200 for LQ is it fine for you?”, the witness replied again “I’m easy”.  He then asked the Appellant what was meant by “$1,200 for LQ” and she answered “bathing and making love once”.  The witness replied, “I’m easy”.  At that stage, the Appellant said, “Let’s go to San Diego to do it”; again the witness replied, “I’m easy”.  The Appellant told PW2 to follow her and they made their way towards the San Diego hotel.

9.In cross-examination, PW2 confirmed that he had spoken to the Appellant earlier on the telephone and in those conversations had told her that he had chatted to her online.  He denied a defence suggestion that he had claimed to be “Sam”, which was the identity assumed online by PWl.  PW2 agreed that on the day of the meeting he had left messages for the Appellant on a number of occasions from 5:15 pm onwards and had also spoken directly to her when it was clear that she was going to be late for the arranged meeting.  He denied that it was he who mentioned “money” or “LQ”, or that what he was confirming was the price that had been agreed previously over the telephone.

10.It was suggested that the Appellant had never said, “1200 LQ is it fine for you?” nor “Is it going to be done?” but PW2 denied that.  The Appellant gave evidence as to admissibility, but did not give evidence or call witnesses on the general issue.  It was her position that PW2 should have known the prices that she charged and the services she offered, from her website.  She denied that it was she who had taken the initiative to tell him about “bathing” or “doing it”.  She said that she would not have said that because “that would be annoying to others” and “they would not accept that.”  She agreed with the prosecutor’s suggestion that it was open to her or the witness to change their mind at any time before completing the transaction.  It was suggested that if that were so it would be necessary to confirm any arrangement that had been made or suggested, at the meeting.  The Appellant claimed that she did not want the public to hear what was said.

11.The Magistrate had to decide only two matters.  If what the witness said about the conversation at the MTR exit were true – did it amount to soliciting?  If so had the soliciting occurred in a public place?

12.Section 147(1)(a) of the Crimes Ordinance, Cap. 200:

“(1)   A person who in a public place or in view of the public –

(a)  solicits for any immoral purpose; or

(b)  loiters for the purpose of soliciting for any immoral purpose,

shall be guilty of an offence and shall be liable on conviction to a fine of $10,000 and to imprisonment for 6 months.”

13.The undisputed evidence showed that the Appellant was acting as a common prostitute and offering her body for immoral purposes.  She had posted her availability, her services, and her charges on a website to which the public had access.  Further, she had shown she was willing to communicate with members of the public through MSN exchanges, or on the telephone and was willing to meet anyone who was prepared to accept her conditions.  Counsel for the Appellant submitted that all arrangements had been made before the physical meeting, so no solicitation in a public place had been made, or needed to be made, at the meeting.  Counsel for the Appellant accepted that if there had been no prior agreement, what was allegedly said would amount to solicitation.

14.Various authorities were considered by the Magistrate when determining the questions that arose in this case.  The Magistrate had considered Smith v. Hughes [1960] 1 WLR 830 where soliciting was examined both in respect of the intention behind legislation to prevent it and, also what it comprised.  Lord Parker CJ stated:

“For my part, I approach the matter by considering what is the mischief aimed at by this Act.  Everybody knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes.  Viewed in that way, it can matter little whether the prostitute is soliciting while in the street or is standing in a doorway or on a balcony, or at a window, or whether the window is shut or open or half open; in each case her solicitation is projected to and addressed to somebody walking in the street.  For my part, I am content to base my decision on that ground and that ground alone.”

15.Smith was referred to in HKSAR v Cheung Kwan-kit & Ors [2002] 4 HKG 506, where Lugar-Mawson J decided what soliciting meant in terms of section 147(l)(a).  He held that soliciting was no more than any act (even a passive one) or words, or a combination of acts and words, indicating that a man or woman was prepared to prostitute him or herself.

16.He found too that the section did not require that the person to whom the indication was made found it welcome or unwelcome.  On that basis the alternative ground in the Appellant’s first Perfected Ground of Appeal, cannot be sustained.

17.In HKSAR v Cen Zhi Cheng [2008] HKLRD 96, McMahon J considered and agreed with the definition of soliciting inCheung Kwan-kit.  He noted too that it was possible to solicit by simply standing in a particular location at a certain time.  He referred to the apposite definition of “solicit” in the Shorter Oxford dictionary; this would appear to involve an individual seeking to obtain something, or some response from another, or to persuade another to do something.

18.In Cen Zhi Cheng, the court noted that section 147(l)(a) did not distinguish between male and female; nor did anything limit its application to specific categories of person.  The person who effected the original solicitation did not necessarily continue to be confined to the role of “solicit-or”.  During discussion or negotiation, the person who was initially the object of the soliciting (“the solicit-ee”) might become the solicit-or; each case had to be considered on its own facts.

19.McMahon J concluded that to ‘solicit’ someone for an immoral purpose in terms of section 147(l)(a) included (but was not confined to) enticing or persuading that person to do some act or thing, or to seek from them some response, so as to bring about an eventuality or state of affairs which was sexually immoral.  Such solicitation need not be shown to be “persistent”, nor did it encompass “importuning”, both of which elements were requirements in a comparable English provision, section 32 of the Sexual Offences Act 1956.  Although both s.147(1)(a) and s.32 were restricted to sexual offences, s.147(1)(a) was not restricted to solicitation by women as was s.32.

20.Mr Poon, who appeared for the Appellant, relied heavily on Ollerenshaw v DPP CO/2197/90 5 December 1991, which related to a summons under s.1(1) and (2) of the Sexual Offences Act 1985, which deals with “kerb crawling”.  The driver had stopped his car in a red light district and a prostitute shouted, “Do you want to do business?”  The driver said, “Yes” and there followed some form of invitation to enter the car, whether by words or gesture or both is not apparent from the report.

“It seems from the case stated that that which is alleged to have constituted the soliciting was the appellant’s invitation into the car.  That that invitation took place is a finding of fact made by the stipendiary magistrate.  No objection is made to that and nor could an objection have been made to it.  Therefore, the soliciting alleged is the invitation into the car, each of the two persons concerned intending that there should be sexual intercourse.”

…

“Therefore, one has to look to see what that invitation was.  The soliciting necessary to establish the offence is soliciting for the purposes of prostitution.  In my judgment, there could, in theory, be soliciting at any time up to the time or even after sexual intercourse.  However, if, as I would find, soliciting implies begging a favour, an element of importuning, an element even of asking, then there has been no soliciting here by the appellant because there was a prior agreement.  Once there was a prior continuing agreement, there was no need to beg a favour, to ask or to importune.  Accordingly, I would find that there was no soliciting.”

21.The court in Ollerenshaw recognised that on the facts the invitation to the car was part of the consummation of the agreed sexual intercourse.  That situation was significantly different from the instant case where the Appellant either continued, or renewed, actual solicitation.

22.Sections 1 and 2 of the Sexual Offences Act 1985 are very different from s.147(1) because they require, (as s.147 does not), that the elements of persistence and importuning be established; it is also gender specific.  Section 147 is designed to be wide-ranging and flexible in its application and thus it is not necessarily helpful to rely on English case law, particularly when those charges have more specific requirements, or narrower parameters than s.147.

23.Mr Poon argued that because the Appellant’s advertisement and the initial arrangements had been made online there was no need for any further solicitation by the Appellant – all that needed to be done on the day of the meeting was to confirm the details of an arrangement that was already concluded.  He also submitted that, in effect, the Appellant was being charged with soliciting online.

24.I cannot agree with Mr Poon.  First, the Appellant was not charged with soliciting on the Internet.  She was charged with soliciting at the MTR exit.  Further, there was no binding contract entered into which stopped time running in respect of the solicitation, as Mr Poon seemed to suggest.  As the Magistrate stated:

“the law of contract had no place … on decided and long-standing authority, in matters of the provision of lewd and immoral acts and the attempt to try to show that there was a decided agreement the day before the parties met was, [in his judgment], futile.  The fact that the witness may have known fully the nature and scope of the services the appellant offered and the cost of those services was no bar to the ability of the appellant to solicit when she and PW2 met.”

The Magistrate had accepted as truthful and accurate the conversation which PW2 said he had with the Appellant.  That being so, it was for the Magistrate to decide whether what was said amounted to soliciting.  He found little difficulty in doing so.

25.In that conversation the Appellant had either renewed or continued, (it makes no difference which it was), her solicitation of PW2 by offering to provide sexual services.  What, if anything, the parties had agreed the day before was no bar to the Appellant further soliciting PW2 by offering her services, explaining those services, or advising her charges.  Nor did the fact they had arranged to meet prevent the Appellant soliciting PW2 at the place arranged for the meeting.  The Appellant when asked had agreed that either party could cancel or change that initial arrangement.

26.The Appellant advertised sexual services on the Internet and had discussions and negotiations with potential customers on-line, by MSN messages, or by telephone.  However she was not charged with soliciting on the Internet or telephonically but with soliciting at the undoubtedly public venue of an MTR station exit.  Whether it was a renewal or continuation of her soliciting on the previous day was irrelevant.

27.The Magistrate had examined the facts and did not err by finding that solicitation had occurred at the place described in the charge.  Nor did he construe incorrectly as solicitation the conversation which took place between PW2 and the Appellant at the meeting place.

28.The Magistrate analysed the evidence in the light of the authorities and gave himself appropriate directions.  There is no basis for interfering with his decision to convict and accordingly, this appeal against conviction is dismissed.

Ms Lily Ho May-yu, Senior Public Prosecutor of the Department of Justice, for the Respondent

Mr Albert Poon, instructed by Messrs W K To & Co, for the Appellant