HKSAR v. Gong Fanglan

HCMA 38/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 38 OF 2014

(ON APPEAL FROM ESCC 3447/2013)

------------------------

------------------------

--------------------------------------------------------

REASONS FOR JUDGMENT

--------------------------------------------------------

1.The appellant was convicted after trial of one charge of Soliciting for an Immoral Purpose and one charge of Breach of Condition of Stay. Her appeal against conviction was dismissed and here are the reasons.

Prosecution case

2.The Prosecution case is that the appellant, a two‑way permit holder who was only allowed to remain in Hong Kong as a visitor, offered to have sexual intercourse with an undercover police officer (“to play with him”) for $3,000.00 in Lan Kwai Fong.  He was asked to withdraw some cash from an ATM and to purchase condoms on the way.  They then took a taxi to a hotel and she was intercepted by other police officers.  Condoms were found in her handbag.

The Defence case

3.The defendant testified that she was married to a Hong Kong citizen, Mr Danny Wong Kwan Ying (DW2) on 22 March 2010, and lives with him Mirador Mansions in Tsimshatsui when she is in Hong Kong.  She said that she used one of DW2’s telephone numbers 9192 2563 when she was in Hong Kong, DW2’s other mobile telephone numbers were 9498 2889 and 9099 5700.

4.She told the court about the call from her friend Wu Ping (DW4) after 11 pm on 5 October, 2013, and how she ended up to be alone in Lan Kwai Fong at those early hours, and eventually sharing a taxi with PW1.  She said that she asked to be dropped at Wanchai as she was meeting her girl friends there, but unknown to her, she was driven to the hotel where she was intercepted.  She said that the box of condoms found in her handbag did not belong to her.  She denied that she had ever offered or agreed to have sexual intercourse with the undercover officer.

Grounds of Appeal

5.The grounds can be summarized as follows:

(1)    The learned magistrate erred in placing little or no weight on the telephone records of the phone that was used by the appellant at the material time, which supports the evidence of the defence and casts grave doubts on the Prosecution evidence; and

(2)   The conviction is unsafe and unsatisfactory.

Respondent’s reply

6.The respondent submitted that the magistrate had analyzed at length the evidence of the appellant and the defence witnesses, and was entitled to take into account that the appellant gave 9498 2889 as the number of her husband’s phone she rang the night against the telephone record which showed that the calls that night were all made to 9099 5700 instead.  It was much later in cross‑examination that she tried to explain that by referring to a speed dial function.  Having found that there were many inconsistencies and inherent improbabilities, the magistrate was entitled to conclude that she had serious doubts as to whether the phone that the appellant claimed to have used that night was indeed used by her, and so rightly concluded the telephone records did not advance the Defence case.

My Judgment

7.Mr Egan submitted that it was possible that the magistrate had referred to a “wrong and incomplete” set of telephone records that appear at pages 0072‑0091 of the appeal bundle in reaching her verdict.  Whilst it is true for reasons unknown, those pages in the appeal bundle were marked with “PD5”, two copies of the complete set of telephone records marked as D5 were in the trial bundle (pursuant to the transcript at AB 128 K that there two such copies were handed up).  The relevant entries referred to Mr Egan on D5 were highlighted by the magistrate, which shows that she has all along been working on this complete set in reaching her verdict.

8.This case turns entirely on who is telling the truth.  If PW1 is right the appellant must have been soliciting and guilty of the two charges.  If the appellant is right then she could not have been soliciting during the time that PW1 said he put her under observation, and so PW1 would have persisted in a false allegation against her and she must be acquitted.

9.What Mr Egan submitted is this.  The appellant’s evidence was largely supported by the 3 defence witnesses and the telephone records.  The magistrate instead of taking into account that the appellant, having gone through the Cultural Revolution and thus received very little education, chose to seize upon minor discrepancies in the appellant’s evidence, unduly magnified them and used such as grounds for rejecting her defence.

10.It was submitted that the telephone records were consistent with and thus supported the evidence of all the defence witnesses including that of the appellant, and so, the magistrate erred in rejecting the defence evidence without good reasons.

11.The magistrate said this in relation to the telephone records:

“20. PW1 stated that he never saw the defendant using the telephone during the observation. Counsel submitted that the telephone records (D5) showed conclusively that there were telephone calls between the Defendant and her husband and her friend CoCo during that time. I agree that the telephone records show that calls were made to two telephone numbers during that time but I do not agree that they are conclusive evidence that the Defendant made those calls. To the contrary, for reasons set out below, I have serious doubts that the defendant was using that telephone that day. . .

23. (2) The Defendant stated that she only called her husband after DW4 invited her out for a drink in Lan Kwai Fong. DW4 claimed that that call was made to the defendant’s Hong Kong telephone number. However, according to D5, the alleged call from DW4 was only received after the call to DW2’s number at 9099 5700;

(3) The defendant said specifically that she called her husband at 9498 2889. However, according to D5, the call was made to 9099 5700;

(4) The defendant stated that she normally called DW2 at 9490 2889(“9498 2889”). She was unable to recall DW2’s other number. However, all the telephone calls she allegedly made on 5 to 6 October 2013 were to 9099 5700;

(5)  Initially, the defendant stated specifically that she called DW2 at 9498 2889.  When she was confronted with the telephone records, she changed her evidence and stated that she used the speed dial function on her telephone;” [underline added]

12.She found that there were parts of the appellant’s evidence that was self‑contradictory and against common sense and there were also discrepancies in the evidence of the defence witnesses, she said:

“I did not believe that defendant or her witnesses. Their evidence was inconsistent with each other, inconsistent with the telephone records (D5) and contrary to common sense. There are too many examples to enumerate in full.”

13.She said this about PW1’s evidence:

“PW1’s evidence was clear and direct. He was unshaken under cross‑examination. I found him to be an honest and credible witness. I accept his evidence . . . ”

14.In my view, the magistrate had fully analyzed the evidence and come to a common sense conclusion.  She has not done what Mr Egan alleged that she had, “starting at the winning post and run backwards”. (per Litton NPJ, HKSAR v Egan(2010) 13 HKCFAR 314)  As a trial judge the magistrate enjoyed the advantages of receiving the evidence first‑hand, and seeing “the whole of the evidence unfolded in its living state”.  The respondent has correctly pointed out that there was no admissible evidence of DW4’s telephone number, and all Mr Egan had asked the magistrate or the appellate court to do was to infer a certain number to belong to DW4 by deduction.  Even though DW3 did give evidence as to her mobile number as one which appeared in the relevant entries in the telephone record, this was nothing more than a bare allegation.

15.I simply cannot see how the findings of facts by the magistrate in such circumstances could be said to be “plainly wrong”.  She is entitled to make the findings she did, and conclude that PW1’s evidence was unshaken.

16.Mr Egan went to the length of quoting from the case of HKSAR v Chow Yuen Han, HCMA 877/2008, to support his contention that sex workers all carry some accoutrements of the trade – lubricant and condoms and in the absence of such, the present case did not have the markings of a prostitution case.  With respect, that case dealt with the appeal against a refusal to grant costs order when the appellant, found to be in possession of baby oil, lubricant and condoms, was acquitted of a soliciting charge because the magistrate was unable to rely on the evidence of the undercover officer.  The accoutrements were mentioned in the judgment because the appellant failed to understand why costs was refused when she was acquitted and it was “not illegal for her to work as a prostitute, and when it was not illegal to carry with her the accoutrements of her trade as a sex worker”.

17.In the present case, a box of condoms was found in the appellant’s handbag (paragraph 1, Admitted Facts).  Whilst it was suggested that the box of condoms was popped into her handbag during the taxi journey to the hotel, this was denied by PW1.

18.Mr Egan also submitted that whilst during closing submission, the magistrate seemed to have some query about why undercover officer had to withdraw cash from the ATM when he should know full well that there was no need for any money to change hand during that operation, that doubt on the part of the magistrate seemingly dissipated 17 days later when she gave her reasons for verdict.

19.A look at the relevant part of the transcript provides the answer (AB 94B to 95G). That comment from the magistrate arose during the submission by prosecution counsel that the fact of withdrawing money from the ATM lend support to PW1’s evidence, since the police decoy, if not asked by the target, would certainly not waste time or divert attention to do so.  Prosecution counsel’s submission that this was indeed an act to convince the target that he was going along with the solicitation seemed to have been accepted by the magistrate.  In any event, there was no dispute that the undercover officer did go to withdraw money at the ATM, and as prosecution counsel carried on to submit, this refuted the evidence of the appellant that she had to share a taxi with PW1 because taxis were scarce at that hour, when she could just get onto to one at no time whilst PW1 was doing the withdrawal.

20.This appeal is devoid of merits and was therefore dismissed.

Mr Prakash L Daryanani, SPP of the Department of Justice, for the respondent

Mr Kevin B Egan, counsel instructed by Tam, Pun & Yipp, for the appellant