The Queen v. Yuen Ying Hung

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 60 OF 1992

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BETWEEN

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Coram : The Hon. Mr. Justice Wong in Court.

Date of Hearing : 5th March, 1993

Dates of Delivery of Judgment : 31st March, 1993

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J U D G M E N T

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1. The appellant was convicted before a magistrate of a charge of publicly displaying signboards advertising  prostitution contrary to section 147A Crimes Amendment Ordinance 1990 (Subsection 2). She was fined $1,000 and now appeals against conviction.

2. The particulars alleged that on 12 November 1992 at Flat B, 2nd Floor, 381 Lockhart Road, Wanchai, in Hong Kong, the appellant caused the public display of a sign that advertised or may reasonably be understood to advertise the services of a prostitute.

3. Section 147A provides:

“(1) Any person who publicly displays, or causes or permits the public display of, a sign that advertises, or may reasonably be understood to advertise, the services of a prostitute or of a person who organizes or arranges prostitution shall be guilty of an offence and shall be liable on conviction to a fine of $10,000 and to imprisonment for 6 months.

(2) ………..

(3) For the purposes of this section –

(a) ……..

(b) in deciding how a sign may reasonably be understood regard may be had to –

(i) all aspects of the sign, including its size, colour, shape and design;

(ii) the location of the sign;

(iii) the user of any place that the sign advertises; and

(iv) the services offered by any person whose services the sign advertises,

and to any other relevant circumstances.”

4. The facts were that in the afternoon of 12 November 1992, WPC Chan Mei-shan who gave evidence at the trial in the court below was on anti-vice duties together with two other officers - one inspector and one constable and on reaching 381 Lockhart Road in Wanchai she saw five to six signboards as depicted in the photographs hanging outside the building. She and her colleagues followed the signs up to Flat B on the second floor where on the outside of the wooden door was a yellow signboard with the numeral 2. On entering into the premises, she found the appellant alone in the room. Outside the window of the room there was a yellow box-shaped sign with the same numeral 2 and the light of this sign was operated by a switch from inside the room. The furniture was minimal containing two beds, sofa, towels and tissues. No other items of furniture normally associated with a domestic residence were present.

5. The appellant told the woman constable that she rented the premises at $8,000 a month as a one woman brothel.

6. WPC Chan had worked in the anti-vice and anti-gambling division at Wanchai Police Station for 9 months and had taken part in over 10 anti-vice raids involving one woman brothels in similar circumstances and the signs and numerals with lights operated by switches from inside the premises were common features of such establishments. In all the previous cases, the occupants had also made admissions to her that they were operating one woman brothels. She had seen the appellant previously on several occasions and the last time was one month before this raid.

7. The appellant did not give evidence or call any witness.

8. Four specific grounds were argued before me and these being:

1. The learned Magistrate erred in finding that the sign displayed at the Defendant’s premises advertised or might reasonably be understood to advertise the services of a prostitute. No evidence was adduced before the Court to show that the sign advertised such services, and no evidence was adduced upon which the Court could be satisfied that the objective nature of “being reasonably understood” had been proved beyond a reasonable doubt.

2. The learned Magistrate further erred in holding PW1 to be an expert witness and then accepting PW1’s conclusions as those which would reasonable have been drawn by the average man.

3. The learned Magistrate erred in admitting the admissions of the Defendant on the following grounds:

(a) the admissions were not made under caution;

(b) the purpose of requiring such information was not explained to the Defendant, and further she was misled by police officers as to the true reason for her being questioned in that she was informed that the police were conducting a licence check.

4. In the absence of evidence relating to the same, the learned Magistrate erred in finding that the furniture found at the Defendant’s premises was not such as would be the usual furniture for a residence.

9. It is not necessary to deal with each and every ground separately. The crux of this appeal, as I see it, is whether there is sufficient evidence for a conclusion to be drawn under section 147A(3)(b). Mr. Leung, Crown Counsel, rightly submitted that the prosecution case was not that the signboard advertised prostitution, it was whether the signboard could reasonably be understood to advertise prostitution. In deciding this question, a number of factors have to be taken into account: the signboard, the furniture in the premises, the admission of the appellant and the expert knowledge of the woman constable which she acquired from her experience in this type of work over a period of 9 months. Once the magistrate accepted the woman constable as an expert and that the admission of the appellant was admissible, there is, in my judgment, overwhelming evidence to support the conviction.

10. In R v Murphy 71 (1980) Cr. App. R. 33, it was stated that at the Court’s discretion, a police officer who is called to the scene of a road accident involving motor vehicles can give expert evidence as to the nature of the collision, the course of the defendant’s vehicle thereafter and other matters said to be deducible from the marks on the road and the damage to the vehicles, so long as he kept within his reasonable expertise, which is a matter for the trial judge. Eveleigh L.J. cited with approval a passage of the judgment of Lord Widgery C.J. in R v Oakley [1979] RTR 417 at p.421 which has this to say:

“The point is so short. The question is: is the judge at fault in admitting the evidence of P.C. Robinson giving his opinion of what he has seen? The answer is that, as long as he keeps within his reasonable expertise, which is a matter for the judge, he is entitled to be heard on every aspect as an expert, to that extent, if no further.”

On these authorities, I am satisfied that the magistrate was not in error to treat the woman constable as an expert in regard to that part of her evidence and having accepted her evidence as such he was entitled to rely on it in deciding whether the sign could reasonably be understood to advertise prostitution.

11. In relation to the third ground of appeal, there is no evidence that the appellant was misled. As soon as she entered the premises, the woman constable told the appellant who she was and showed the appellant her warrant card. She further told the appellant that she was there to check her  licence. She had been to the premises and seen the appellant before who must be aware of the purpose of the police visit. It has never been the case of the appellant that the admission was extracted from her involuntarily. The fact that she was not cautioned did not render her admission inadmissible. This only amounts to a breach of the Judges' Rules and it is a matter within the discretion of the magistrate.

12. The appeal therefore fails and must be dismissed.

Mr. Paul Leung Sr. C.C. for Crown.

Mr. J.N. Summers of M/s. Hampton, Winter and Glynn for the appellant.