The Queen v. Ng Kam Yin

CACC000119/1988

BETWEEN

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Coram: Fuad, V.-p., Clough & Power, JJ.A.

Date of Hearing: 13th December 1988

Date of Judgment: 13th December 1988

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J U D G M E N T

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Fuad, V.-P. (giving the judgment of the Court):

1. The Applicant appeared in the District Court before Judge Pang on 5 charges:

1st Charge - keeping a vice establishment, contrary to s. 139(a) of the Crimes Ordinance;

2nd Charge - unlawfully possessing Part I poisons, contrary to s. 23(1) of the Pharmacy and Poisons Ordinance:

3rd Charge - criminal intimidation, contrary to s.24(a) of the Crimes Ordinance;

4th Charge - unlawful sexual intercourse with a girl under 16 years, contrary to s. 124(1) of the Crimes Ordinance;

5th Charge - living on the earnings of prostitution, contrary to s.137(1) of the Crimes Ordinance.

2. The Applicant was defended at the trial by Counsel. He at first pleaded not guilty to all the charges, but on 24 February this year, after the father of the girl concerned in the case had given evidence about her age (she was born on 29 Tune 1971) and the girl herself had concluded her examination-in-chief, Counsel representing the Applicant asked the judge to put the Charges to him again. The Applicant then pleaded guilty to the 1st and 5th Charges and maintained his plea of not guilty to the other charges.

3. The trial continued. On the following day the Applicant was convicted on the 3rd and 4th Charges and acquitted on the 2nd Charge. He was sentenced to 3 years imprisonment on the 1st Charge and to 2 years imprisonment on the 3rd, 4th and 5th Charges. The sentences on the 1st and 5th Charges were ordered to run concurrently. The sentences on 3rd and 4th Charges were also ordered to run concurrently, but consecutively to the sentences imposed on the 1st and 5th Charges. The Applicant was thus ordered to serve a total of 5 years' imprisonment.

4. He now seeks leave to annul against his convictions (including those resulting from his pleas of guilty to the 1st and 5th Charges ) and against the sentences imposed upon him.

5. In his grounds of appeal the Applicant says that he was "told'" by Counsel representing him to plead guilty on the 1st and 5th Charles and that fines at most would be imposed in respect of them. He had only 10 minutes in which to matte up his mind. He thought that since his lawyer understood the law, what he had said must be true and so he had admitted the charges even though he had not committed the offences.

6. We have no doubt that there are no merits whatever in these grounds. The Applicant pleaded guilty himself and not through his Counsel. As we shall see, he is no stranger to the Courts. It is not suggested that he did not appreciate the nature of the charges or that he did not intend to plead guilty. There is nothing to indicate that in following the advice he received his choice was other than free and deliberate. The fact that he may have adopted the advice "unhappily and with reluctance" does not, of itself, render the pleas of guilty nullities (see e.g. R. v. Peace [1976] Crim.L.R. 119)

7. Before us, the Applicant went further and accused his Counsel of incompetence and irresponsibility, and the judge of bias. These allegations are quite unfounded.

8. The convictions which followed the pleas of guilty to the 1st and 5th Charges cannot be assailed.

9. The evidence given by the girl in respect of the criminal intimidation charge (3rd Charge) was that she was threatened by the Applicant that if she attempted to run away from the premises where she was working as a prostitute, her parent's home would be burned down and she would be "chopped". She was not free to leave the premises and was guarded at all times.

10. The girl also gave evidence that the Applicant had had sexual intercourse with her on one occasion (4th Charge when her father's evidence showed that she was just under 16 years of age.

11. The Applicant elected not to give evidence. He called one witness material only to the 2nd Charge (unlawful possession of Part I poisons) on which he was acquitted.

12. The judge, in his Reasons for Verdict, said that in this kind of case (the girl was young and a sexual offence was involved) corroboration was always looked for and noted that there was none. He indicated that he had warned himself of the danger of acting on uncorroborated evidence but said that he believed the girl, observing that she had impressed him is an accurate, coherent, truthful and honest witness". He was satisfied that the charges to which the Applicant had pleaded not guilty had been proved beyond reasonable doubt.

13. Although the Applicant contends that there were discrepancies in the evidence of the prosecution witnesses, only the girl gave evidence relevant to the offences of which he was convicted. What the Applicant is really asking for is a re-trial on the 1st, 3rd, 4th and 5th Charges for, he says: "If a re-trial of the entire case is held, with me pleading not guilty to all the changes, the result will be significantly different."

14. The application for leave to appeal against the convictions is quite hopeless and is refused.

15. The Applicant was represented by Counsel on his application for leave to appeal against sentence. The judge gave full and careful reasons for the sentences he imposed. He said that these were very serious offences. An under age girl had been made to work as a prostitute and the Applicant's relationship with the girl was almost that of master and slave. The threat to burn down the house of the girl's parents was an aggravating factor. As to the Applicant's own act of sexual intercourse with the girl, the judge said that it appeared that the Applicant had taken advantage of the girl's situation, for she had no choice. The judge was satisfied that the Applicant had intimidated the girl so that she would succumb to his exploitation of her. The judge said that he had taken into account the two pleas of guilty and explained why he had ordered some of the sentences to run concurrently and some consecutively. He added that he had considered the totality of the sentences he bad imposed.

16. The only mention the judge made of the Applicant's previous record was that he had a previous conviction in 1971 for unlawful sexual intercourse with an under-age girl. But it is to be noted that the Applicant, who is 35 years of age, was sent to a Training Centre in 1969 for robbery; he had other convictions (for which he was imprisoned) in 1971 for blackmail and theft. He was convicted of two robberies in 1973 for which he served short sentences of imprisonment; he was convicted of four robberies in 1978 for which concurrent sentences of 8 years were imposed and he had two theft convictions in 1985 which resulted in short terms of imprisonment.

17. Mr. Alexander King, for the Applicant, has addressed us with ability, citing a number of authorities. We have given careful consideration to his submissions. It may well he that the sentences imposed on some of the charges (particularly on the 4th and the 5th Charges) looked at individually, were somewhat higher than the level of sentences usually imposed for such offences, but taking the total criminality of the Applicant's conduct into account, we are quite unable to say that the aggregate sentence was manifestly excessive. We, therefore, dismiss the application for leave to appeal against the sentences on all the charges.

Representation:

Mr. Alexander King (D.L.A.) for the Applicant

Mr. Duncan Kilgour (Crown Prosecutor) for the Crown