Cheung Chi-shing v. The Queen

Case No.CACC 847/1979

Court

Court of Appeal

Date21 Sep 1979

Judge—

Case Document

100%

CACC000847/1979

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 847 OF 1979

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Between
	Cheung Chi-shing	Appellant
	AND
	The Queen	Respondent

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Coram: Power, J.

Date of Judgment: 21 September 1979

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JUDGMENT

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1. In this matter the appellant faced one charge of living on the earnings of prostitution under section 137(1) of the Crimes Ordinance Cap. 200. He pleaded not guilty to that charge and after trial was convicted as charged. He originally appealed against that conviction on the ground that there was no evidence or no sufficient evidence whereon to found the said conviction.

2. On the morning of the appeal leave was given to argue the following further grounds of appeal namely:

"	1.	The learned trial magistrate erred in failing to give any consideration to the appellant's evidence (at page 24-25 of the proceedings) whereby the appellant stated that out of a total household expenses $1,300, PW3 Chan Wing Lan contributed only $500.
	2.	The learned trial magistrate erred in convicting the appellant without first finding whether or not PW3 Chan Wing Lan was the sole income earner for the family.
	3.	The reference to section 136 of Cap. 200 in the learned magistrate's statement of findings renders the conviction unsafe or unsatisfactory in that the appellant was charged with an offence under section 137(1) of Cap. 200."

3. The learned magistrate prepared the following statement of findings which I set out in full:

"This appeal is against conviction on the following charge:

	Man living on the earnings of prostitution, contrary to section 137(1) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong.
	Cheung Chi-shing, you are charged that you, on divers days between 1976 and 1979, in this Colony, knowingly did live wholly or in part on the earnings of the prostitution of Chan Wing-lan.
	It will be seen from the minute which accompanies this statement of findings that it was common ground between the prosecution and defence that the appellant lived with a prostitute named Chan Wing-lan and that he knew she was earning money as a prostitute. The only points of dispute were as to whether the appellant induced Chan to earn money by prostitution and whether or not she was the sole breadwinner for both of them. It was admitted, however, by the appellant that she made a contribution to the household expenses.
	The appellant's case was hopeless, having regard to the provisions of section 136 of Cap. 200. I was satisfied beyond reasonable doubt that the appellant was guilty.
	The appellant has not appealed against sentence. In view of the decision of the Full Court in Tam Kun-shing and others v. R. (1975) H.K.L.R. 128, there seems to be no need for me to say anything about the matter of sentence."

4. The learned magistrate did not have the opportunity to see the additional grounds of appeal and was, therefore, unable to comment upon the third ground. Section 136 of the Crimes Ordinance deals with the offence of causing or encouraging prostitution of a woman who is a defective. That section had no reference of any sort to the facts of the present case and I indicated at the commencement of the hearing that it seemed to me to be clear beyond doubt that section 136 had been inadvertently mentioned in the statement of findings instead of section 137. Mr. Raymond Leung, who appeared for the appellant, did not thereafter seek to rely upon this ground.

5. Mr. Leung contended that it was plain from the statement of findings of the learned magistrate that he had relied upon the evidence of the appellant himself when arriving at his finding of guilty and that this evidence did not support such a finding.

6. The learned magistrate did say "The only points of dispute were as to whether the appellant induced Chan to earn money by prostitution and whether or not she was the sole breadwinner for both of them. It was admitted, however, by the appellant that she made a contribution to the household expenses." The statement of findings makes no reference to any of the other evidence except to indicate that it was common ground that the appellant knew that Chan Wing-lan was a prostitute and that she was earning money as a prostitute. No findings were made as to the two points of dispute which were indicated and one can fully appreciate why Mr. Leung considered himself in a position to forcefully contend that the learned magistrate, when convicting the appellant, had relied solely upon his admission that Miss Chan contributed to the household expenses.

7. The evidence of Miss Chan, in this regard, was as follows:

"From beginning of 1976 I cohabited with D1 (identifies D1 in Court). I was working as a hostess at the Pik Yuk Ming Chu Wine Shop in Portland Street. After I cohabited with him he suggested that I stop working there and go to work somewhere else. He asked me to become a prostitute. He took me up there to the Hoi Suen Moon guest house in Cheung Sha Street. He introduced me to the foki, Ah Wing. D1 said to Ah Wing "My girl is working here. If there is any customer, ask her to do it". When I worked as a prostitute there I earned about $200 to $300 a day. I received that money. I did not spend it - on many occasions when D1 came back I gave all the money to him. His nickname is Dai Luk Shing. He only let me have a little pocket money - a few tens of dollars. I cohabited 5 years with him. During that period he never worked. He depended on women - on me. I supported his living. During that 5 years period I always worked as a prostitute."

Later in her evidence Miss Chan said that over the five years when she cohabited with the appellant he had only given her back a total amount of $100 to $200 for pocket money.

8. The appellant gave evidence in which he denied having taken Miss Chan to the Hoi Suen Moon apartment for prostitution and said that she was the one who had rented the room in the apartment for the purpose of prostitution. He said that she was his girl friend and that he had lived there with her at her invitation. He said that he had worked, earned, and saved so as to be able to rent premises and that he did eventually rent a place at Liu Cheong Hing Building for $200 a month which he paid. Under cross-examination Miss Chan had agreed that the appellant had fathered a child by her which was born in 1977 and the appellant said, in his evidence, that it was he who had suggested that they should have this child. He said that he did so because he was thinking that after the child was born she would stop working as a prostitute and after the birth he told Miss Chan to stay at home and look after the child, but that she did not listen to what he said and that an amah was employed to look after the child. He said "I mostly paid the bill for household expenses. I paid $1,300 and she paid $500 - a total of $1,300. She contributed $500. Re the intimidation charges - my relationship with Chan deteriorated in May 1979 because she did not have money to pay the rent. If I had money I paid. If she had money she paid. The quarrel was over money. For several months she did not get any money back and pay the rent".

9. Mr Leung, relying upon the wording in the statement of findings, submitted that the learned magistrate, when convicting the appellant had clearly acted upon the appellant's admission that Miss Chan had contributed $500 towards the total household expenses of $1,300. Mr Leung contended that such a contribution would not, of itself, as the evidence stood, be sufficient to found a conviction. There is much in this contention. However I am not satisfied that the learned magistrate did rely upon that evidence alone when coming to his conclusion as to guilt. He commented that "the appellant's case was hopeless, having regard to the provisions of section 136 (for which, I am satisfied, he meant section 137)". It seems to me that what the learned magistrate was there saying was that when the presumption raised by section 137(2) was taken into account the appellant's case was hopeless. Section 137(2) provides that a man who lives with a prostitute shall be presumed to be knowingly living on the earnings of prostitution unless he proves the contrary. The learned magistrate had already indicated that it was common ground that the appellant lived with Miss Chan, who was a prostitute, and it would seem, if he was relying upon the presumption, that he must have been satisfied that the appellant did not prove the contrary. Of course, if this was so, a specific finding in this regard should have been made.

10. There was ample evidence coming from Miss Chan upon which the learned magistrate might have convicted the appellant. The statement of findings should have indicated what parts, if any, of this evidence were accepted by the learned magistrate. If Miss Chan's evidence was accepted in full then the appellant was clearly guilty upon that evidence of the offence charged. If it was the case that the learned magistrate had doubts as to the evidence of Miss Chan but considered that the evidence did establish that Miss Chan was a prostitute and that the appellant had been living with her and that the presumption in Section 137(2) was raised by this evidence, the statement of findings should have indicated clearly that this was so. If the learned magistrate further considered that the appellant had not displaced the presumption this also should have been clearly indicated. This was a matter which clearly called for a detailed statement of findings. In the circumstances the statement of findings was far from adequate; indeed, it did not really contain any findings at all.

11. Given that there was ample evidence upon which a conviction might have been founded I consider that the proper course is to quash the conviction and order that the matter be retried by another magistrate.

	(N. P. Power)
	Judge of the High Court

Representation:

Mr Raymond Leung (Wong, Hui & Souza Solicitors) for appellant

Hawkes, C.C., for Crown/Respondent