HKSAR v. Yau Wai Man and Another

CACC 213/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 213OF 2009

(ON APPEAL FROM HCCC NO. 98 OF 2009)

_________________________

BETWEEN

_________________________

Before: Hon Stock VP and Wright J in Court

Dates of Hearing: 14 and 22 January 2010

Date of Judgment: 3 March 2010

_________________________

J U D G M E N T

_________________________

Hon Stock VP (giving the judgment of the Court):

Introduction

1.During committal proceedings in the magistracy, each applicant entered a plea of guilty to two charges of living on the earnings of prostitution contrary to s. 137(1) of the Crimes Ordinance, Cap. 200, which provides a maximum penalty of 10 years’ imprisonment on indictment.

2.On 20 March 2009 the applicants were committed to the Court of First Instance for sentence, where, on 19 June 2009, Judge Longley, sitting as a Deputy Judge of the Court of First Instance, sentenced each to undergo periods of imprisonment. Each applicant agreed a summary of facts during committal proceedings. A third accused denied those charges and an additional charge of rape and was tried before the judge.

3.The first applicant was ordered to be imprisoned for a period of two years on each count, with one year of the sentence on the second count to run concurrently with the sentence on the first count, resulting in an overall sentence of three years. The second applicant was ordered to be imprisoned for a period of two years on the first count and two years and four months on the second count with, again, one year of the sentence on the second count to run concurrently with the sentence on the first count, resulting in an overall sentence of three years and four months: a suspended sentence was activated and ordered to be served consecutively to the sentences imposed by the judge.

4.Each seeks leave to appeal the sentences.

The facts

5.The first offence occurred during an undefined period in June 2008 and the second on land 2 July 2008. The girl upon whose prostitution the applicants lived was 18 years old at the time of the offences. She had been the “girlfriend” of the first applicant for some months before the offences. Each applicant accepted the contents of a report by a clinical psychologist to the effect that the girl functioned in a range of “mild grade mental retardation”, her independent adaptive functioning being equivalent to 12 years 6 months.

6.What was admitted by each applicant in the respective summaries of facts, apart from the personal particulars of the girl and the results of the enquiry into her mental condition, may be summarised thus: for approximately a week in June 2008, the girl was asked by the applicants, and agreed, to work as a prostitute in order to repay what they said was a debt owed by the first applicant to the second applicant: in the words of the summary of facts “this turned out to be a scam set up among the three accused”; she served 7 to 10 customer per night; initially, the second applicant gave the girl $200 out of each sum of $250 paid by customers but at a later stage he retained all the money; she was “held at Hoi Yuet 88 Finger Cure Centre”, which was run by the third accused person; during that time the third accused person and the second applicant would take her to a newspaper stall to await calls from customers; although initially willing to work as a prostitute in order to pay the first applicant’s supposed debt she felt “painful” and found the job to be a hardship; she “escaped” or “managed to leave” Hoi Yuet 88 and returned home for 2 weeks; on the night of 1 July she was “dated” by the first applicant: she was “caught” by the third accused person and the second applicant; that night she was “forced to work as a prostitute again”, the same ruse of indebtedness by the first applicant to the second applicant being employed; and that same night she served seven customers.

Amending the summary

7.Before turning to the grounds of appeal, we wish to make a comment about an amendment to the summary of facts presented to the Court of First Instance. When the applicants came before that Court, the prosecution then presented, in respect of the first applicant, an amended summary of facts; amended, that is, from the one the contents of which had been agreed in the hearing before the magistrate. The effect of the amendments was to divorce the first applicant from knowledge of some of the material happenings of the night of 1 July 2008. When the judge queried why the prosecution had seen fit to proffer the amendment, he was told by the prosecutor that this had been occasioned as a result of discussions. This was not a satisfactory explanation. At the magistrate’s level, the prosecutor had stated by way of a summary the basis of its case and those facts were accepted by the applicants. If a prosecutor seeks later to water-down the basis upon which it puts its case against an accused or if an accused seeks to resile from an agreement earlier made as to facts, and the omitted facts or the facts not agreed appear to be material to sentence, the judge is entitled to know the reason for the change. For the prosecutor merely to tell the judge that it is “the result of discussions” is not acceptable. If the contents of a summary of facts omits evidence of which the judge is aware and which is material to sentence the judge is not bound unthinkingly to accept the watered-down version. If significant facts, apparently supported by cogent evidence of which the judge is aware, are abandoned by the prosecution or do not appear in the prosecution’s opening as represented by its summary of facts, the judge is entitled to know why. It may well be that in this particular case the reason for the amendments was sound: perhaps because the prosecutor did not feel able to bring home, as against the first applicant, knowledge of some of the facts. If that was the reason, the prosecutor should have said so.

8.In this regard we note the comment in HKSAR v Mohammad Nadim [2010] 1 HKC 281 at p. 293 that:

“Of course, if from a reading of the committal papers a judge forms the view that the Summary of Facts presented by the parties does not reflect the true facts of the case it is open to the judge to order a Newton hearing.  Otherwise, he is bound to sentence on the basis set out in the Summary of Facts.  Nevertheless, equally he is entitled to reject implausible or fanciful mitigation and to do so without recourse to a Newton hearing.”

We do not apprehend that it was intended thereby to suggest that it would automatically become necessary to order a Newton hearing where the judge intended to take into account matters not included in the summary of facts.  Where he intends to take such other information into account, what he is obliged to do is to indicate his intended course, to hear such representations as may be made to him and, only if then necessary, hold a Newton inquiry to resolve any material dispute.

The Grounds of Appeal

9.The complaints of the applicants may be regarded as being three: first, that the judge failed to accord sufficient weight to the facts that prior to the incidents the girl had worked as a prostitute “on her own volition” and that during the period reflected in the charges she had been “abusing ketamine”; second, that the judge failed to take into account that the first applicant had had no direct control over her prostitution; and third, that the judge “wrongly took into account aggravating factors that had not been the prosecution’s case and had not been admitted by the appellants.”

10.As to the first issue: the judge was fully aware that the girl had prostituted herself prior to meeting the applicants and he was also aware that the girl had initially agreed to work as a prostitute to discharge an entirely fictitious debt on behalf of her “boyfriend”, the first applicant, to the second applicant: he pointed out, in terms, to the first applicant’s counsel “… there are girls that perhaps have voluntarily consented and were not tricked … ”. It is plain that in order to have her work for them, the applicants deliberately practised a cruel and cynical deception upon the girl. We do not see how, if it were true, the fact that the girl had been abusing ketamine at the time of these offences is to the credit of the applicants.

11.As to the second issue: each of these offences was a joint venture committed by the applicants in respect of which, in principle, they were deserving of the same sentence. In respect of the second count there were additional factors which the judge recognised as justifying a higher starting point for the second applicant, which he adopted.

12.The third issue is more complex. In his sentencing remarks the judge said:

“On the basis of the facts admitted by you, the offences committed by you were particularly serious and are quite different from such offences which often come before the courts.

You were preying on the vulnerability of a young woman suffering from mild grade mental retardation to satisfy your own greed.

I had the opportunity of seeing [the young woman] giving evidence in the trial of the [third defendant] over more than four days and am satisfied that neither of you can have been in any doubt, bearing in mind the extent of contact you had with her, that she was a young woman of very low intelligence and that her social and adaptive skills were those of a girl several years younger than her actual age.  The clinical psychologist put her adaptive skills as equivalent to those of a girl of 12½ years of age. She estimated her full-scale IQ to be 61.”

13.The judge went on to highlight other aggravating aspects, for example, the pretence that the boyfriend (the first applicant) owed money, the fact that she had effectively been held prisoner so that the applicants could profit from her prostitution, and that she had been duped into the meeting on 1 July on the pretext of a date.

14.Mr Beel, who has ably argued the matter before us on behalf of these applicants, complains that the judge ought not to have acted on the basis that the applicants knew of the girl’s “very low intelligence” most particularly since he had made it clear on behalf of the first applicant that the first applicant did not appreciate that fact so that, at the least, the judge ought to have afforded counsel the opportunity of calling his client (Mr Beel acted only for the first applicant in the court below) whose own level of intelligence and perceptiveness the judge could then have assessed.

15.What happened was this. In relation to another factual issue altogether, the judge had made it clear to Mr Beel that he was not prepared to accept what was put in mitigation and that if Mr Beel wished to pursue the point evidence could be heard on it. Mr Beel took time for instructions and in the event abandoned the particular point.

16.On the question of the first applicant’s knowledge of the girl’s low intelligence and his taking advantage of that fact, there was an extensive exchange between Bench and Bar. At an early stage, the judge made it clear that, in his view, he having observed the girl giving evidence in the trial of the third accused, it must have been obvious to anyone who had known the girl for a while that she was mentally retarded but Mr Beel insisted that: “Whether someone is slow or mild-grade retarded there may be a fine line …” and the judge said: “Yes, but in my view, he would have known she was of very low intelligence”; to which Mr Beel replied: “Then I accept your Lordship’s assessment of her.” It would appear that what Mr Beel was intending to concede was the factual categorisation of the girl’s intelligence and not his client’s knowledge of it but the judge can readily be forgiven for assuming that there was no remaining issue.

17.Later, however, the question of knowledge of the girl’s level of intelligence was revived, with Mr Beel saying that:

“My client maintains that he did not know she was mentally retarded.  My lord, I differentiate that perhaps someone who is … perhaps a bit slow – or low intelligence doesn’t equate to being mentally defective.”

He pressed the point that his client’s case was that he had not taken advantage of the girl’s low intelligence; the judge then rejoining with a comment: “…after a short time one would realise that she was a girl of very low intelligence.  You are not suggesting that he did not exploit that.”  Mr Beel in reply: “Well, my instructions are that he didn’t know that she was of low intelligence and I am bound by those… I mean I am complying, my Lord. On those tram tracks he is totally specific that he did not know… he could have said she wasn’t the sharpest… pencil in the pencil box.”

18.We note that there was no suggestion by Mr Beel to the court that there was something in his own client’s personality which might have made him ignorant of what was obvious to the judge. Given the lack of any such suggestion and the reference by Mr Beel to an appreciation that the girl was not “the sharpest pencil in the pencil box”, the judge can hardly be blamed for proceeding on the basis that there was in the event no realistic issue in relation to this apparently aggravating feature of the case. Furthermore he had made as clear as could be his view that no-one could have been ignorant of that feature. All this no doubt explains why he did not offer, as he had in relation to the other factual issue, an opportunity for evidence to be called on this issue.

19.In addition to this, counsel then acting for the second applicant, told the judge that whereas his client “did not know that she was mentally retarded … he wasn’t denying that he noticed the victim was slow in response.”

20.There is no obligation upon a judge to hold a Newton inquiry where he is correctly of the view that what the accused says is far-fetched and unbelievable: see HKSAR v Tong Chi-keung Cr App 332/1997. That, on the information before him, was the view taken by the judge and we think that he made that view patently clear to counsel. Nothing was advanced to the judge by counsel for the first applicant – other than a bald assertion – to support the contention that his client, very well acquainted with the girl, would not appreciate what anyone else who knew her would appreciate. Therefore, on the information before the judge, he had a mere assertion which he was entitled to view as far-fetched and unbelievable. We do not think in the circumstances that it was incumbent upon him to initiate a Newton hearing and none was suggested by Mr Beel.

Conclusion

21.We do not in the circumstances see that the judge erred in his approach or in the conclusions at which he arrived, and accordingly these applications are dismissed.

Mr Eddie Sean, SADPP of Department of Justice, for the Respondent

Mr Trevor Beel, instructed by Messrs Betty Chan & Co., assigned by Director of Legal Aid, for the Applicants