HKSAR v. Lui Ki

CACC49/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 49 OF 2009

(ON APPEAL FROM DCCC NO. 647 OF 2008)

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BETWEEN

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Before : Hon Yeung, Hartmann JJA and Lunn J in Court

Date of Hearing : 21 January 2011

Date of Judgment : 21 January 2011

Date of Handing Down Reasons for Judgment : 28 January 2011

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REASONS FOR JUDGMENT

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Hon Lunn J (giving the Judgment of the Court) :

1.The appellant appealed against her convictions by Judge D’Almada Remedios on 9 February 2009 on two charges of procuring the prostitution of another person, contrary to section 131(1)(a) of the Crimes Ordinance, Cap. 200, pursuant to leave granted by a single judge of the Court of Appeal on 16 October 2009. Her appeal against the sentence of 21 months’ imprisonment imposed upon her in consequence of her convictions was dismissed on the same date, following the filing of a Notice of Abandonment on 29 September 2009. At the hearing of the appeal, we dismissed the appeal and said that we would give reasons for so doing in due course. This we do now.

THE CHARGES

2.The two charges of which she was convicted alleged that, in the period between 7 and 9 March 2007 and 10 May and 11 June 2007 respectively, in Hong Kong she procured a different female to become a prostitute in Japan. 

THE TRIAL

The prosecution case

3.In the prosecution case two undercover female police officers testified of their respective dealings with the appellant after they had responded to different advertisements placed in the Oriental Daily News.  There was no dispute that the advertisements had been placed by the appellant.  Each of the officers spoke to the appellant on the telephone and subsequently met her and discussed the advertisement.

Charge 1

4.Detective Constable Chan Wai Yin responded by calling a telephone number under the name of Lam stipulated in an advertisement in the Oriental Daily News dated 7 March 2007 which read :

“Quick Cash Japan. Busy Establishment with booming business, steady income. Accompanied by Hong Kongers. Below 45 years old. No experience needed. [telephone number ] Lam”

When they met the appellant told DC Chan that she wished to employ someone to go to Japan to work as a “PR”.  At a subsequent meeting she said the place of work was similar to a karaoke establishment or a pub in which she would accompany customers to sing and drink alcohol, for which she would be paid ¥20,000 for two hours.  For “overnight work” she would accompany customers to a hotel where, after they had bathed together, she would be expected to sit on the bed, touch and then “do it” with the customer.  By that she understood that she had to make love with the customer.  The appellant told her that most customers would wear a condom and that it was rare for them not to do so.  From her earnings she was required to pay the appellant ¥200,000.  Accommodation in Japan and air tickets would be arranged for her.  They parted on the basis that the two of them would travel together to Japan in April 2007.

Charge 2

5.In the telephone conversation that Detective Constable Choi Pui Yee had with the appellant on 10 May 2007, after she had responded to another newspaper advertisement, the appellant told her that she was looking for someone to be employed as a waitress in a karaoke establishment in Japan.  When they met subsequently the appellant told her that the job was as a “PR”, accompanying customers to sing and drink alcohol and, if she was willing, to go outside with customers to go to bed.  If she did the latter, she would be paid ¥30,000.  ¥200,000 of her earnings was to be paid as fees to the appellant.  On 28 May, they met again and, at Natori Travel Agency, DC Choi bought a return airline ticket to Japan departing Hong Kong on 12 June.  After having done so, and once they were in a KFC outlet the appellant wrote various details related to DC Choi’s trip to Japan on the back of some travel literature obtained from Wing On Travel Agent, which they had visited together earlier.  That detail included :

“Charges upon entering the country-deduct ¥200,000 first and pay it to me.”

6.After having had several telephone conversations on 11 June DC Choi met the appellant again, in order to mail clothing that the appellant said would be suitable for the officer to wear at work, during which meeting the appellant bought packets of contraceptive pills, after she had received a negative reply from DC Choi as to whether she had done so herself, which were added to the parcel.  Whilst they were waiting in the queue to mail the parcel the appellant was arrested, inter alia, for procuring a person to become a prostitute.  Under caution, the appellant denied doing so.

The defence case

7.The appellant, a 39-year-old woman with no previous criminal convictions, testified that she had placed advertisements in the Oriental Daily News and Sun News in the first half of March 2007.  Lam was her married name.  She did so to find someone to accompany her to go to Japan in October 2007 in order to share the expenses.  She did not procure either of the two female officers to become prostitutes.  DC Choi had told her that she wished to work in Japan and had requested her help.  As a result, she had accompanied DC Choi to buy a return airline ticket to Japan at the latter’s request.  Similarly, she had purchased contraceptive pills for DC Choi at her request and was merely assisting her to mail the parcel to Japan.

THE REASONS FOR VERDICT

8.In rejecting the appellant’s evidence that she had placed the advertisements in the newspapers in the first half of March in order to find a companion with whom to share expenses to travel to Japan, the judge noted that the appellant’s evidence was that she proposed to go there in October, whereas the advertisements were many months earlier.  Of that she said, “This does not make any sense.”  Also, she noted that the airline ticket purchased for DC Choi’s travel was for a departure in June 2007 and that the appellant had accepted in her evidence that she was not going to travel with her.  Of that she said, “It would therefore obviously be impossible for the defendant and PW2 (DC Choi) to share expenses.”  Finally, she noted that the advertisement was not appropriately worded, if the purpose was to recruit a companion to share expenses.

9.Similarly, the judge rejected the appellant’s explanations given in her evidence of what she accepted that she had written for DC Choi on the back of the Wing On brochure.  In particular, she rejected her explanation that the statement “Deduct ¥200,000 first and pay it to me” was a reference to a deposit that was to be paid to a friend of the appellant in whose house in Japan the appellant would reside.  She noted that if the payment was to be made to the appellant’s friend in Japan, “it would be illogical that the defendant would write pay to me instead of pay to Japanese friend.”  She determined that the appellant’s explanation that the reference “pay ¥30,000 to the person in charge of the shop” was a reference to a payment be made to the person in charge of a temple and not the mama‑san, as DC Choi testified, was “was absurd and nonsense”.

10.In result, she stated that she found the appellant’s evidence “ludicrous” and “incredible”.

11.In determining that the two undercover police officers were “honest and reliable witnesses”, the judge noted that the contents of what the appellant accepted she had written on the back of the Wing On brochure lent “support and credence” to DC Choi’s account.  Further, she determined that the purpose for which the appellant placed the advertisements was “to attract and recruit women under the age of 45 years to Japan for the purpose of prostitution”.  Of the appellant’s dealings with the two police officers she found that the appellant had “attempted to procure them to become prostitutes in Japan” [italics added].

12.Having made reference to various elements of the law in relation to attempts, in particular reminding herself that “mere preparatory acts would not be sufficient”, the judge determined that the appellant had “attempted to procure” each of DC Chan and DC Choi “to become a prostitute in Japan”.

13.Having convicted the appellant on Charges 1 and 3 the judge did not return a verdict in respect of the charges laid in the alternative, namely Charges 2 and 4.  However, the judge went on to state that, in respect of Charge 2, she found there to be insufficient evidence that the appellant had attempted to take part in taking DC Chan out of Hong Kong whereas, if it had been necessary, she would have been satisfied that there was sufficient evidence, in relation to Charge 4, of the appellant having done so in respect of DC Choi.

GROUNDS OF APPEAL AGAINST CONVICTION

14.Mr Ma, who was not counsel for the appellant at trial, advanced two grounds of appeal against conviction.  By Ground 1, he complained that the judge failed to consider whether the appellant believed that the respective undercover police officer “was a prostitute” so that the appellant was not guilty of procuring the officer “to become a prostitute”.  In support of that submission Mr Ma relied upon the judgment of this court in HKSAR v Sze Wai Ying [2010] 1 HKLRD 956.  In the judgment of the court, delivered by Cheung JA, it was noted that if a person is a prostitute she cannot be procured to become one.  Further, citing the judgment of the Court of Appeal of England and Wales in R v Brown [1985] 80 Cr. App. R 36 the court noted (page 962, paragraph 12) :

“... if the defendant believed or might have believed that the person in question was a prostitute, he could not procure that person to become a prostitute; the reason is that he did not have the intention to procure a person who is not a prostitute to become a prostitute.”

15.Mr Ma contended that there was sufficient evidence by which the issue was raised, so that the judge ought to have addressed her mind to the issue, although it is clear that she did not do so. Having conceded that the appellant had given evidence, in which not only had she denied procuring the two officers to become prostitutes but also had denied ever discussing sexual matters, he submitted that the issue was raised by other evidence in the case. 

16.In respect of Charge 1, concerning DC Chan, he submitted that the issue was raised in her evidence when she had responded to the statement of the appellant as to the rate to be paid for “overnight work”, by enquiring whether that was safe and whether it might involve perverts.  Further, having been told that there would not be any perverts and that, after she had been taken to a hotel with such clients, she would be expected to bathe with them, sit on a bed, touch them and “do it” with them, and that most clients would wear a condoms, the reaction of DC Chan was merely to enquire about how many days a month she would be expected to work.  That conduct, so it was submitted, was consistent with DC Chan being a prostitute.

17.Similarly, in respect of Charge 2, concerning DC Choi, Mr Ma submitted that the issue was raised in her evidence.  On her evidence, having been told by the appellant that if she was willing she could accompany customers to go “outside” to work overnight, “to go to bed” for which she would be paid ¥30,000 DC Choi had responded by enquiring about details of sexual practices : whether the customers would practice “SM”; whether there would be multiple customers; whether such customers would wear a condom and whether any of them would be from Hong Kong.

18.By Ground 2, it was contended that, if the appellant succeeded on Ground 1 and the court went on to consider Charge 4, laid in the alternative to Charge 3, the judge erred in determining that she was satisfied that the appellant had attempted to commit the offence alleged in Charge 4 in that she failed to consider sufficiently whether the acts of the appellant were more than merely preparatory to the commission of the offence.

THE SUBMISSIONS OF THE RESPONDENT

Ground 1

19.On behalf of the respondent, Mr David Leung submitted that the knowledge or belief of the appellant as to whether the person to be procured was already a prostitute was irrelevant.  The judgment of this Court in Sze Wai Ying was per incuriam.  Counsel for the respondent in that case was in error in conceding the point.  He submitted that the interpretation articulated in Sze Wai Ying defeats the mischief of the section, namely a prohibition on a person taking steps to procure a person to act as a prostitute.  Given that the offence creating provision, namely section 131(1)(a), falls within the same Part of the Ordinance as section 124(1), which creates an offence of unlawful sexual intercourse with a girl under the age of 16 years, the same approach to statutory interpretation is appropriate.  In So Wai Lun v HKSAR [2006] 9 HKCFAR 530, the Court of Final Appeal determined that the offence created by section 124(1) was one of absolute liability.

20.He pointed out that it is to be remembered that in Brown the appellant’s case, as articulated in his out-of-court statement to the police, was that he believed that the girl in question was a prostitute.  His approach to her was to act as a pimp on her behalf.  The court determined that the recorder erred in rejecting a submission of no case advanced on that basis, ruling that the appellant’s belief as to whether or not the girl was already a prostitute was irrelevant to the offence.

The ambit of the evidence adduced at trial

21.Of the ambit of the evidence at his trial, Mr Leung pointed out that, in addition to the prosecution case, the defence case that was adduced in evidence included not only her the out-of-court statements to the police but also her testimony.  Nowhere, in that evidence was the issue raised of the defendant’s belief that the two undercover police officers were prostitutes.  Citing the judgment of this Court in R v Chong Kin Cheong (CACC95/1995; 18 August 1995, unreported) he submitted that it was not the task of the judge (page 3) “to imagine possible defences of which there is no evidence”.

A CONSIDERATION OF THE SUBMISSIONS

Ground 1

22.The appellant did not raise the issue of her belief that the two undercover officers were prostitutes in either her out-of-court statements to the police or her testimony at trial.  There is no dispute that the matter was not raised on that basis with the judge in closing submissions by counsel for the appellant at trial.  However, of course a judge has a duty to place before a jury, or to consider himself, all possible verdicts which are open on the evidence.  He must do so “even if a particular alternative is not raised by the parties or is inconsistent with the defence run by counsel for the accused” (see the judgment of the Court of Final Appeal in Ho Hui Shing v HKSAR [2008] 11 HKCFAR 354 at pages 360J-361; paragraph 12).  Nevertheless, it is not the judge’s task “to imagine possible defences of which there is no evidence”.

23.It follows that the issue to be addressed is whether or not an examination of the evidence overall raises the issue of a belief in the appellant that the two undercover police officers were prostitutes.  For current purposes we do so on the basis that the judgment of this Court in Sze Wai Ying is correct noting, however, that issue is taken with that judgment by the respondent.  Whilst the defence of the appellant at trial was a complete denial that sexual matters were raised in conversations with the two undercover officers, let alone that she attempted to procure them become prostitutes and to go to Japan to so conduct themselves, it is necessary to consider all of the evidence relevant to the issue of her belief in the appellant.  In the absence of evidence from the appellant, or in her out-of-court statements to the police, that might be relevant to the issue of her belief it will be necessary to consider, in particular, how she conducted herself in her conversations with the two undercover officers.

Charge 1

24.The advertisement in the newspaper, which the appellant accepts she placed, on its face is aimed at people below 45 years of age, who wish to make ‘Quick Cash’, who are not required to have experience and who are prepared to go to Japan to obtain or earn that money. No doubt, it carries with it and innuendo of illegality.  However, it appears to be aimed primarily at those who wish to make ‘Quick Cash’.  It does not follow logically that those who might respond to such an invitation, even on the basis that it involved prostitution, would be restricted to those who were already prostitutes.  Obviously, it might attract those whose money needs might lead them to consider the temptation of becoming a prostitute in order to solve those needs.

25.The explanation that the appellant gave to DC Chan of what was expected of her (see paragraph 4) might be thought to be an elementary description of how she was to conduct herself in her “outside work” : bathing together, sitting on the bed and touching. The detail provided belies a belief in her that the appellant that she was dealing with a prostitute.  It suggests that the appellant was providing information, lest DC Chan had no such experience.

Charge 2

26.No evidence was adduced at trial of the advertisement to which DC Choi responded.  It is be noted that when DC Choi met the appellant, having been told on the telephone that the job was as a waitress in a karaoke establishment, her response to the appellant's enquiry, “Have you done that before?” produced the response : “Do you mean working as a waitress?  I have worked on a part-time basis before.”  It was then necessary for the appellant to disabuse her of the nature of the job being offered.  In particular, she went on to tell her that she was to keep company with customers in the karaoke establishment and, if she was willing to do so, to accompany them “outside to work overnight”, in particular to go to bed with them.  Again, the nature of that exchange and those that followed belies a belief in the appellant that she was dealing with a prostitute.  Rather, it suggests that she was providing that information, lest DC Choi had no such experience.

27.In the result, we are satisfied on a consideration of all the evidence that the issue of a belief in the appellant that either or both of the undercover police officers was or were a prostitute(s) did not arise.  Accordingly, it was not a matter that the judge was required to address in her reasons for verdict.

28.In light of that determination, it is not necessary for this Court to consider the submissions made by Mr Leung that the judgment of the court Sze Wai Ying was per incuriam.

Ground 2

29.Given the determination that we reached in respect of Ground 1, it is not necessary to consider the arguments advanced under Ground 2.

CONCLUSION

30.For the reasons set out above, we were satisfied that there were no merits in the Ground of appeal against conviction.  Accordingly the appeal was dismissed.

Mr David Leung, SADPP of the Department of Justice, for HKSAR

Mr David Ma, instructed by Messrs Leung & Lien, assigned by the Director of Legal Aid, for the Appellant