HKSAR v. Cheung Yuk Ha and Another

DCCC 193/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 193 OF 2013

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Reasons for Verdict

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1.D1 faces one charge of Controlling other persons for the purpose of prostitution[1], and one alternative charge of Managing a vice establishment[2].

2.D2 faces one charge of Assisting in the management of a vice establishment[3] and one charge of Wilfully obstructing a Police officer in the due execution of his duty[4].

3.They pleaded not guilty to their respective charges.

Background

4.An undercover Police officer was sent to make the acquaintance of D1 through the introduction of a Police informant. There were various contacts between D1 and the officer that the prosecution say suggested that D1 was controlling other persons for the purpose of prostitution.

5.Alternatively, it is the prosecution’s case that by using the flat 3B premises named in charge 2 as a dormitory and taking part in the organizing and arranging of prostitution there meant that D1 had managed the premises that was being kept as a vice establishment.

6.D2 was seen to have arrived at the premises on the day the undercover operation went overt and shortly before the Police raided the premises. D2 seemed to have assisted in getting ready some girls on the premises to go out to meet with some people. It is the prosecution’s case that by reason of her conduct on that day, it is an irresistible inference that she had in the 39 days period between 27 October and 5 December assisted in the management of the premises which was kept as a vice establishment.

7.After Police raided the premises and D2 was arrested, when Police officer tried to seize D2’s mobile phones as exhibits for the purpose of investigation, D2 allegedly refused to cooperate and tried to snatch the phone back. Warnings were given but D2 still refused to cooperate which resulted in her arrest for the obstructing charge.

Issues

8.An issue common to all charges is the credibility and reliability of the prosecution witnesses, in particular of the undercover Police officer.

Charge 1

9.The particulars of the charge state that D1 had ‘exercised control, direction or influence’ over 26 women for the purpose of their prostitution. The issue is whether D1 did exercise such control, direction or influence over the women and whether it was for the purpose of their prostitution.

Charge 2

10.The issue in relation to charge 2 is whether the premises was a vice establishment and whether D1 managed it as such.

Charge 3

11.The issue in relation to charge 3 is whether the premises was a vice establishment and whether what D2 allegedly did amounted to assisting in its management in the 39 days period as particularized.

Charge 4

12.The first issue is the credibility and reliability of the 2 Police officers who witnessed the alleged obstruction.

13.Once that is established, the issue is whether the arrest was unlawful on the ground that there was no basis for reasonable suspicion for the arresting Police officer to arrest D2 as submitted by counsel for D2. If the arrest was unlawful, the officer was not in the due execution of his duty and D2 cannot be guilty of the charge.

14.If the arrest was lawful, the issue is whether the snatching as proved by the prosecution could in law amount to obstruction. It is D2’s case that the snatching of the phone did not amount in law to obstruction, just mere inconvenience.

Admitted facts

15.There are 2 sets of admitted facts, P-58 and P-58(a), but they are both between D2 and the prosecution only. There are no admitted facts between the prosecution and D1.

16.It is admitted facts, in relation to D2’s case, that on 5December 2012, Police arrested a total of 27 females for the offence of breach of condition of stay. The prosecution subsequently offered no evidence in relation to 17 of those females.

17.It is admitted in the 2^nd set of admitted facts, P-58(a), that apart from the 27 females mentioned above, the Police also found 11 people who were Hong Kong identity card holders inside the raided premises. Those 11 people were brought back to the Police station for enquiries and were later released without being charged. It is not stated in the admitted facts whether those 11 people were males or females.

Admissibility of D1’s 2 video recorded interviews and connected exhibits

18.The prosecution sought to produce into evidence the notebook entry of the Police officer who arrested D1, 2 Notice to Person in Custody (pol 153) and 2 video recorded interviews of D1. The voluntariness of D1’s participation in the video recorded interviews was challenged and dealt with by way of the alternative procedure. D1 fully understood her rights and elected to give evidence in her own defence on the special issue. She did not call any other defence witnesses.

19.At the end of the procedure, I ruled in favour of the prosecution and all related exhibits were formally admitted into evidence.

20.In coming to my decision on the special issue, I found all the Police officers honest and reliable witnesses, and their testimonies stood up to cross-examination. I found that no one had assaulted D1 at any time, nor did anyone threaten her to cooperate.

21.Having heard D1 in the witness box, I found that she was not an honest witness on the special issue. She mentioned for the first time that it was not her signature in the notebook. Yet this was never put to the relevant witness in cross-examination. Furthermore, it is clear in the interviews that D1 was calm and collected right from the beginning when the Police officer tried to explain to her the enlarged pol153 notice on the wall inside the interview room, mistakenly suggesting that it was the one she had signed earlier. D1 did not skip a beat and immediately pointed out the mistake.

22.D1 was alert throughout the two interviews. Furthermore, as the prosecution rightly pointed out in cross-examination of D1 on the special issue, a substantial amount of answers she gave in the interviews were actually exculpatory. If she was so scared and wanted to cooperate, why would she give such answers. Her answers and attitude in the interviews corroborated the evidence of the Police officers, which is that no one had assaulted her and she took part in the interviews voluntarily, gave those answers voluntarily, signed the notebook voluntarily and had never complained once to either the Duty Officer of TST Police station or Kowloon West Police headquarters.

Admissibility of text messages, audio messages and photos found on the mobile phone of the undercover Police officer and on the mobile phone of D1

23.The prosecution sought to produce into evidence text messages, audio messages and photos found on the mobile phones of the undercover Police officer and D1, which were accessible only via a software application called WeChat found on both phones. Mr. Ross for the prosecution made it clear that they do not seek to prove the truth of the contents of those messages or photos.

24.The main contention by D1 against the WeChat media is that the prosecution has failed to prove the operation of the application WeChat. There is no evidence as to how the messages might be sent from one computer (D1’s mobile phone) to another (undercover Police officer’s mobile phone) and vice versa. Mr. Yip for the defendant suggested that a computer server or servers would have been involved and given the fact that the prosecution have not adduced any evidence as to the proper operation of those computers, the messages and photos being documentary evidence from the mobile phones (computers), the requirements under s.22A(2) cannot be shown to have been complied with and the computer records should not be admissible.

25.It is for the prosecution to prove beyond reasonable doubt the admissibility of the WeChat messages, audio messages and photos both on the phone of the undercover officer and D1.

Computer

26.In the case of HKSAR v WONG Ka-yip, Ken, HCMA 77/2013, the respondent was charged with and acquitted of an offence under s.161 of the Crimes Ordinance, Cap.200. The facts of the case are that the respondent had used his mobile phone to record video clips of the toilet bowl area inside the office’s ladies’ room. The issue on appeal by way of case stated is whether a mobile phone is within the definition of a ‘computer’ under s.161.

27.Fung J finds that the definition of a computer under the Evidence Ordinance should not be applied to s.161 of the Crimes Ordinance. Fung J however finds that the dictionary meaning of ‘computer’ would cover the mobile phone under s.161 and found therefore that the magistrate erred in finding the term ‘computer’ in s.161(1) does not include the mobile phone.

28.In our present case, it is not the prosecution’s position that the mobile phones in question are not ‘computers’ by definition under s.22A of the Evidence Ordinance.

The purpose of adducing the evidence

29.It is the prosecution’s case that the messages, audio messages and photos are not sought to be adduced to prove the truth of their contents. They merely seek to adduce them to show that the text messages, audio messages and photos had in fact been received by the undercover Police officer, and that mirror copies of some of those messages and photos also exist on D1’s mobile phone, thus corroborating the officer’s evidence in court and goes to his credibility and reliability as a witness.

30.The prosecution is not relying on any of the messages or photos to prove that D1 did introduce prostitutes to the officer, or that the photos of the girls sent were those of prostitutes.

Ruling

31.s.22A is created to deal with situations when documents produced by a computer may be inadmissible by reason of being hearsay evidence, when the truth of the contents of the document is relied upon.

32.I found that given the purpose of adducing those messages and photos by the prosecution is not to prove the truth of their contents, s.22A has no impact on the admissibility of the text messages, audio messages or photos since they are tendered otherwise than for the purpose of proving a fact stated in them.

33.In making this finding, I relied on paragraph [504.1B] of Criminal Evidence in Hong Kong by Bruce and McCoy, the case of Secretary for Justice v Lui Kin-hong and the case of Subramaniam v Public Prosecutor [1956] 1 W.L.R. 965, 970:

“Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.”

34.In our present case, given it is the prosecution’s position that they do not seek to prove the truth of the contents of the messages and photos but merely to use them to show that the messages and the photos had been received and that similar messages or photos resided on D1’s mobile phone, which they say corroborate the evidence of the undercover Police officer, I found that s.22A did not need to be invoked.

35.That being the case, common law rule applied and I found that the fact that those messages were received by the Police officer and found in D1’s phone are relevant and probative and there is no prejudice against D1 in their admission into evidence.

36.I therefore ruled that the mobile phones, together with all the recorded information inside, as recovered by witnesses later on and displayed to the court via the photos admissible as original evidence.

37.For the sake of completeness, had s.22A been applicable, I would have found that the prosecution had proved that the conditions under s.22A(2) had been satisfied.

38.I pointed out that the argument by Mr. Yip that there are other computers involved in the relaying of the messages and photos from one phone to another may not be relevant by reason of the operation of s.22A(4).

39.Under s.22A(4), even when the activities carried on were by a combination of computers or by different computers or different combinations of computers or in any other manner involving the successive operation over that period of activities in whatever order of one or more computers and one or more combinations of computers, the law is that all the computers used for that purpose whether by one or more persons or bodies during that period shall be treated for the purposes of s.22A as constituting a single computer.

40.This would suggest that the prosecution would not have to prove that every single one of the computers involved had been in proper operation, just that there is an overall integrity in the processing of the information. This was of course a moot point given that I found that s.22A did not apply in the present case.

Prosecution evidence

41.The prosecution called 8 live witnesses and have various witness statements read into evidence under s.65B of the Criminal Procedure Ordinance.

Evidence of Madam Chu the landlord

42.The evidence of the landlord of the premises Madam Chu is supposedly relevant to the knowledge of D2 on the premises being kept as a vice establishment. It is her evidence that D2 was the previous tenant of the premises and had rented the 3B premises from 2004 to 2008. Madam Chu knew and had consented to the premises being used by the then tenant as a dormitory. The partitions and additions were still there when the next tenant took up the tenancy.

43.She remembered that when D2’s tenancy expired, D2 had introduced her friend D1 to Madam Chu to take up the tenancy. Madam Chu was also told by D1 that she would be renting out the place to other people to be used as a dormitory. D1 continued to be the tenant right up to the time of the premises being raided by the Police in December 2012. Madam Chu was not cross-examination by either of the defendants.

44.Madam Chu’s evidence contradicted with what D1 said in her video recorded interview about having no idea who D2 was. I find Madam Chu telling the truth and find that D1 must have been lying about that in her video recorded interview. Even if D1 was lying about this, it does not mean that she must be guilty of the offence. It goes merely to D1’s credibility in relation to that particular part of her evidence in the form of the contents of the video recorded interviews.

The undercover Police officer DPC 58453 “Ah Nick”

27^th October 2012: first meeting between undercover officer and D1

45.It is the undercover police officer’s evidence that he was introduced to a woman nicknamed Rainbow or Yuki at about 00:45am on 27 October 2012 inside Neway CEO Karaoke in TST. The Police officer disguised his Police identity and told Rainbow to call him Ah Nick. This woman was subsequently identified to be D1 and her identity is not disputed.

46.D1 gave Ah Nick a name card (P-28) with 2 phone numbers on it. Ah Nick immediately took out his phone and dialed one of the numbers (6289 5643) so that his own mobile phone number would appear on D1’s phone. Ah Nick introduced himself as someone ‘who followed bosses’ (跟班), which was the made up identity that was given to him by his superior officer, Station Sergeant Yiu Kwok Keung.

47.The two of them chatted and D1 mentioned that she had some business in Yuen Long and TST. D1 asked Ah Nick whether he needed to find someone to keep him company and to have fun that night. Ah Nick said yes and then saw D1 appeared to make several phone calls. Ah Nick did not hear who D1 was calling and for what purpose.

48.After a while, a girl came into their room and D1 introduced the girl as Yuen Yuen, who then sat on the left side of Ah Nick. After a while, D1 left.

49.Ah Nick continued to chat with Yuen Yuen who told him that she came to know D1 through a friend. Yuen Yuen was not called as a prosecution witness and there is no direct evidence to show whether she in fact came to know D1 through a friend.

50.Yuen Yuen then told Ah Nick that her charges for accompanying someone to have fun for 2 hours would be $600, and there would be an additional $1,000 for going out and ‘going up to a room’. Ah Nick said he understood ‘going up to a room’ meant to have sex, whereas the $600 would be for sitting in the karaoke and keeping him company while he was having drinks. Yuen Yuen also said that for the charges that Ah Nick would be paying, Yuen Yuen will have to pay a commission of $200 to D1.

51.It must be pointed out at this point that there is no direct evidence that D1 knew Yuen Yuen said those words to Ah Nick, nor any direct evidence to suggest that D1 had instructed or requested Yuen Yuen to say those words to Ah Nick, and the prosecution cannot rely on what Ah Nick said Yuen Yuen said to prove that D1 would in fact take a commission of $200 from Yuen Yuen, this being hearsay evidence.

52.Ah Nick spent about less than an hour with Yuen Yuen inside the karaoke room and then left after settling the bill for the karaoke. When Ah Nick and Yuen Yuen left, Ah Nick gave her $600. Yuen Yuen then said to Ah Nick that she was walking back to Rainbow’s place and the 2 of them parted. Again, this cannot be evidence to prove that Yuen Yuen did in fact walk back to D1’s place.

30^th October 2012: communications with D1 via WeChat

53.Ah Nick used the WeChat application on his mobile phone on 30 October to communicate with D1. Ah Nick did that by first requesting through the application to be verified by D1 as a friend. D1 did so verify. Ah Nick also talked directly with D1 over the phone during that period of time. D1 asked where Ah Nick was and he made up a lie and said he was with his boss at his boss’ place.

54.D1 asked Ah Nick whether they needed girls to keep them company and Ah Nick said yes. D1 then said she would send photos of some girls for him to see. Ah Nick then received some photos of girls via the WeChat application which were apparently sent from D1’s phone.

55.Other than the photos, D1 also sent some text and audio messages to Ah Nick. Ah Nick gave evidence in court that the contents of those messages roughly included D1 asking him whether it was an overnight stay or do it once, that a lot of other girls had come to work, that frequently these girls would come to Hong Kong.

56.Ah Nick remembered D1 also said in one of the audio messages that the girls would engage in sex, blow job (girl performing oral sex on a man), but for that, more would be charged. D1 also told Ah Nick that for younger girls, they may not be that wild or as relaxed as they can be and they may not know how to play. D1 also mentioned that regardless of whether the girls were found to be suitable or not, they would have to reimburse the girls for taxi fares.

57.Most of that contents were in audio messages and some were in text messages. It is Ah Nick’s evidence that he recognized the voice in the audio messages as that of D1’s.

58.On that particular occasion, Ah Nick turned D1 down, saying that it would take a long time and there was no need for her to make the arrangement.

59.DPC58453 was later shown the WeChat text messages, the audio messages and the photos and confirmed they were an accurate record of what he had seen and heard at the time he received those messages and photos.

16 November 2012 1^st visit by Ah Nick to the premises

60.17 days after the said communications, Ah Nick met up with D1 in TST and then D1 brought Ah Nick to D1’s home, which was the premises particularized in the 2^nd charge, i.e., flat 3B.

61.When they arrived at the premises, D1 opened the door and led him into the premises. Ah Nick remembered that just when they were entering the premises, there was another girl who followed D1 into the premises. After the girl went in, D1 told Ah Nick that “the girl was also a prostitute” and that “the girl could perform best in a blow job”. There is no evidence who this girl was and she was not called as a witness.

62.After Ah Nick entered the premises, he sat in the living room at the wooden table right next to the purple safe facing D1. The two of them started to chat.

63.During that period of time, Ah Nick disclosed to D1 that he would need to take care of some foreign customers of his boss the following Monday on 19 November. D1 then asked him whether it was necessary to serve these customers. Ah Nick said yes.

64.D1 said that her home could accommodate over 20 girls and asked Ah Nick to go there to choose the girls.

65.There was then a discussion of the charges. D1 said that it was possible that some girls might not want to serve male foreigners, so it was necessary to charge a higher rate.

66.D1 also said to Ah Nick that it would cost $600 for accompanying a guest for drinks for 2 hours, and $1,200 for having sex once. Ah Nick made up the story that some of the customers would be friends of the boss and so no payments should be collected from them, that the money would be paid by his boss. D1 then suggested that Ah Nick could give the money to her first and she will give the money to the girls later on.

67.Ah Nick therefore took out $4,000 and handed the money over to D1. After D1 received the $4,000, she said to Ah Nick that if the money was not enough she would ask him for more, but if there was too much, the money would be returned to him. D1 also suggested to Ah Nick that he could pick 4 girls and they could then be chosen by the foreign guests. Ah Nick chatted some more with D1 for a while and then left.

19 November 2012: 2^nd visit by Ah Nick to the premises and picking of girls

68.Ah Nick called D1 in the afternoon but was not able to get in touch. It was not until some time after 7pm that D1 returned his call and asked him to go up to the premises, saying that Ah Nick could “go up any time to pick the girls”.

69.The undercover Police officer was then instructed by his superior to go to a bar in TST called “All Night Long” at Knutsford Terrace to meet up with 2 senior Police officers who were foreigners who will be posing as Ah Nick’s boss’ customers.

70.After Ah Nick had met up with the officers, he then walked to D1’s home. Ah Nick made a phone call to D1 asking her to open the door for him. Ah Nick went inside the premises and sat at the same wooden table.

71.Ah Nick saw that apart from D1, there were about 7 other girls there. Some of them were putting on make up and some were eating. Ah Nick waited for a while and then D1 asked the 7 girls to “stand up properly” in a line facing him. D1 then asked Ah Nick to pick 4 girls for “going out”. Ah Nick picked 4 girls and then brought them over back to the bar where he met with the Police officers mentioned earlier.

72.According to the undercover Police officer, these 4 girls had already been paid for on the previous occasion when he gave the $4,000 to D1 at the premises.

73.After Ah Nick brought 2 of the girls to the bar, the 2 police officers picked 2 and Ah Nick told the other 2 to leave. The 5 of them then had a drink and chatted for a while and then Ah Nick left first.

74.At about 9pm, Ah Nick received a phone call from D1, saying that one of the girls who was chosen by the Police officers was having her period and was not convenient to accompany a guest and asked Ah Nick to go back to her home to pick another girl who will go to the bar to replace that girl.

75.Ah Nick then went back to Flat 3B and brought another girl to the bar to replace one of the girls. Ah Nick and the replaced girl left separately.

76.Ah Nick then went back to D1’s home at flat 3B. They chatted and D1 said to Ah Nick that because the girls did not want to serve male foreigners, there will be a higher charge. D1 said it would be $500 for accompanying a guest to drink and $1,500 for having sex once. Ah Nick then mentioned that he had already paid D1 $4,000. D1 replied that the customers were introduced by Ah Nick, so there would be a commission to Ah Nick at the standard rate of ‘one drawn from five’. For $4,000, there would be a commission of $800, which D1 said will be split equally between herself and Ah Nick. D1 then took out $400 from her safe and handed the money to Ah Nick.

77.They chatted some more after that for a while, with Ah Nick making up the story that it was possible that his boss would organize a large scale conference in the beginning of December and will need to serve a lot of foreign guests. D1 asked whether it was necessary to find girls to serve them. D1 said that her home could accommodate 20 odd or 30 girls at most, and for them to be chosen by Ah Nick at any time.

78.Ah Nick said he will inform D1 when he got the news and then left the premises.

Evidence of the 2 foreign Police officers

79.Although the undercover Police officer was not present throughout the meeting between the 2 foreign Police officers and the girls, the 2 officers’ witness statements were admitted into evidence under s.65B of the Criminal Procedure Ordinance.

80.According to their statements, after Ah Nick had left them, they chatted with the 2 girls using simple English and Putonghua or Cantonese. After about 30 minutes, one of the girls said she was feeling uncomfortable and indicated that she was having her ‘menstrual cycle’. The girl made a phone call in which she spoke Putonghua. Ah Nick then returned to the bar with another Chinese girl who replaced her.

81.At 9:30pm, the 2 Police officers together with the 2 girls left the bar and walked to a place called ‘Park Excellent Villa’. Each officer went with one girl into one room. When inside, one of the girls took off the jacket of the Police officer and gestured for him to undress. The officer took off his shirt and tie and sat on the bed while the girl took off her shorts and blouse. The girl then indicated for the officer to take off his trousers and said ‘make love?’. The officer said to her in Cantonese that he could not because he was married and asked for a massage instead. The girl smiled and said ‘okay, no problem.’ The officer then lay face down on the bed and the girl massaged the upper body of the officer for about 15 minutes. After she finished, the officer put his clothes back on and the girl also got dressed. They left the room at around 10:15pm and the girl said her goodbye and walked off on her own.

82.As for the other Police officer who was in the other room with the other girl, once inside the room, the girl took off the officer’s jacket and started to undo his trousers but the officer moved her hands away and instead removed his tie. The girl said ‘we make love’ and then showed the officer her translator which said condom. The officer shook his head and said ‘sorry married’ and asked for a massage instead. The girl took off the officer’s shirt and gave him a simple massage. The girl had kept her clothes on at all times. They left the room at about 10:25pm and went their own way.

83.It must be pointed out that at the bar, it was the Police officers who had asked the girls if they wanted to go to a hotel.

26 November 2012: 3^rd visit to Flat 3B by the undercover Police officer

84.Ah Nick was instructed by his superior officer to visit D1’s premises on 26 November. D1 opened the door to let him in and Ah Nick sat at the same wooden table in the living room. On that occasion, Ah Nick saw more than 15 girls inside the premises. The girls were doing make up and combing their hair.

85.D1 introduced a woman in her 40s to Ah Nick as Ah Yi. D1 said this Ah Yi was responsible for cooking for the girls inside the flat and she would help with cleaning the place.

86.Ah Nick told D1 about another occasion when he will have to entertain his boss’ customers which should take place on 5 December. D1 told Ah Nick not to worry and that there will be plenty of girls for him to choose. Ah Nick chatted with D1 for a while and then he left.

87.A short time after he left, he received a phone call from D1, telling him not to worry, that she was going out to bring back 2 girls, that there will certainly be many girls available for him to choose in the following week.

4 December 2012: phone calls from D1

88.On the night of 4 December, Ah Nick received a phone call from D1 telling him not to worry as she had already prepared the girls for him. In a later phone call the same night, D1 told Ah Nick that for those girls who would go out on the following day, for them, they would charge $2,000 for accompanying guests to have fun for one night, and there would be an additional $1,200 for sexual intercourse. Ah Nick said  no problem.

89.In relation to the phone calls between Ah Nick and D1, I find that Ah Nick had properly identified the voice of the person on the other end as D1. I have applied the Turnbull direction as adapted for voice identification and considered that by that time Ah Nick had had ample opportunity to become familiar with D1’s voice.

5 December 2012: the raid of flat 3B

90.Some time after 5pm on 5 December, Ah Nick was instructed by his superior officer that he was to go to flat 3B to meet with D1 at around 7pm. Ten $1,000 bank notes were handed over to Ah Nick for him to use as payment to D1, should the situation arise.

91.Ah Nick arrived at flat 3B at around 7pm. When inside, he saw more than 20 girls there. A lot of the girls were doing their make up and combing their hair.

92.D1 said to Ah Nick again that for the girls to accompany a guest for one night, that would cost $2,000 and $1,200 would be charged for having sexual intercourse once. Again, Ah Nick said that there was no problem. D1 then asked Ah Nick for a deposit, whereupon Ah Nick handed over the $10,000 cash which had been given to him earlier. D1 then said she will have the payment settled with him the following day for anything that had not been paid after they had had fun. D1 also told Ah Nick that another 10 odd girls were coming.

Evidence in relation to D2: woman in red pants

93.Ah Nick sat on the lower bunk bed in the middle of the living room and waited. At about 8:20pm, two middle-aged women entered the premises and Ah Nick asked D1 who they were. D1 answered that the 2 had come to assist her. This was said in the presence of the 2 women.

94.Ah Nick saw one of the 2 women who was wearing glasses and in a pair of red pants telling the girls in the premises to put on their make up, comb their hair and tidy up their clothing.

95.This same woman then went up and talked to Ah Nick, saying that, “Our girls could certainly play the finger guessing game, and drink alcohol and certainly they could serve the customers well.” The woman also told Ah Nick that he could be rest assured that he will be able to take the girls out to see the customers.

96.Meanwhile, the undercover Police officer saw D1 had taken out a red notebook and a pen and she said to the girls in the premises that each of them would have to put their names down. A while later, after most of the girls had gotten ready and were in the living room, D1 said in a loud voice to the girls, “Later on when you go out, each of you would have to get a condom from me” or words to that effect. It is Ah Nick’s evidence that the woman in red pants was still in the premises and those words of D1 was spoken in her presence.

97.In total, Ah Nick had seen the woman in red pants inside the living room for about several minutes but she did go in and out of the various rooms in the premises.

The Raid

98.Shortly after hearing D1 telling the girls to take a condom, at about 8:25pm, Ah Nick saw his superior officer and other Police officers raided the premises.

99.After the Police officers had brought the people in the premises under control, DPC58453 Ah Nick went up to D1 and pointed out that D1 was the owner of the premises and she was the one who had found the girls.

100.Ah Nick also went to the middle part of the premises and pointed out to another colleague the woman in red pants, saying that she had been involved in asking the girls to put on their make up. This woman was identified by Ah Nick in court as D2.

101.Ah Nick also pointed out to other colleagues that the girls in the premises had been arranged by D1 to come to Hong Kong for prostitution.

102.At about 10pm, the woman who was previously introduced by D1 to Ah Nick as Ah Yi entered the premises and so Ah Nick also pointed out to his colleague at scene that this Ah Yi was there to help with the cooking and cleaning at the premises. Ah Yi is not a defendant in this case nor did she give evidence.

103.DPC58453 stayed at the premises for about 3 hours and then he returned to the safe house.

Evidence in relation to charge 4: The arrest of D2 by DSPC 50074 Assisted by WPC 11282

104.DSPC 50074 was one of the Police officers who raided the premises on the night.

105.After his entry and after the situation was under control of the Police, his team member, the undercover Police officer 58453, pointed out the woman, who was later identified as D2, to him as having committed the offence of assisting others in smuggling people in and out of Hong Kong for the purpose of prostitution. At that time, D2 was inside room 5 of the premises with other people.

106.It is 50074’s evidence that he immediately arrested D2 and then asked his colleague WPC 11282 to search D2. He saw some cash, bank pay-in slips and 2 mobile phones were found from D2’s handbag. WPC 11282 handed over those things to 50074 who held them in his hand.

107.DSPC 50074 then said to D2 that he was going to seize those things for investigation. D2 was “very reluctant and uncooperative”. The officer explained to D2 that they suspected that those articles were related to the case. It is the officer’s evidence that D2 “continued to grab her mobile phone from me with her hand”, while telling him that he could not take the phones in a dialect that sounded like accented Cantonese.

108.50074 told D2 to stop and that if she did not, there was a possibility that she would be committing the offence of resisting a Police officer in executing his duty. Yet D2 continued and “tried to grab hold of the phone with the hand”.

109.The Police officer issued a second warning asking her to stop. The officer said that at that point in time he almost lost his balance as he was being pulled by her.

110.The Police officer issued a third warning, telling D2 that if she did not stop he will have to arrest her. D2 kept on saying ‘give it back to me, give it back to me’ in accented Cantonese.

111.50074 said that WPC 11282 also helped by “trying to pull her hand away” from him, so that “she would not grab hold of my hand”. D2 was however unable to get the phone from the officer.

112.DSPC 50074 then said they took D2 away from the original position and went to another position near the kitchen where WPC 11282 tried to see whether there was anything else on D2 or in her handbag. D2 complied with the request to search her without any struggling on this occasion.

113.50074 eventually did arrest D2 for the offence of obstructing a Police officer in the due execution of his duty. Later on, D2 collapsed at the position near the kitchen and was taken to hospital. She was discharged the following day.

114.In cross-examination by D2’s counsel, DSPC 50074 said that D2 did not try to grab the 2 mobile phones from WPC11282 and it was only when he told D2 that he was seizing the phones that D2 tried to grab the phones.

WPC 11282’s evidence

115.WPC 11282 was the woman Police officer asked by DPC 50074 to search D2. It is her evidence in chief that she searched D2 in the corridor outside the washroom of the premises, between the refrigerator and the wooden table area. The officer said in evidence that she found 2 mobile phones from D2. She remembered that D2 was holding one of them but she could not remember where she found the other one.

116.WPC 11282 said D2 refused to let her seize the 2 mobile phones. She described in her examination in chief the refusal as follows: “Because I had taken away the 2 mobile phones found on her person and she was trying to grab them from me”. D2 was however not successful because she was “still holding the 2 mobile phones”. The officer said D2 resisted her seizing of the 2 mobile phones for “several minutes”. It must be pointed out that, in the cross-examination of DSPC 50074, it is his evidence that D2 did not try to grab the 2 mobile phones from WPC 11282 when she found them from D2’s handbag. I find this a material and significant discrepancy.

117.During her cross-examination, it was pointed out to WPC11282 that in her witness statement she said that she found two iPhones from D2’s handbag and there was no mention that D2 was holding one of the phones. The officer agreed that she made a mistake in her evidence in court.

118.It is the officer’s evidence that after finding the phones and some money, she handed over those exhibits to DPC 50074. As far as she knew, DPC 50074 witnessed the incident between herself and D2 over the seizing of the mobile phones. She was however not clear if DPC 50074 said anything to D2 because the situation was very chaotic. She was however aware that he did declare arrest on D2 for the offence of obstructing a Police officer in the due execution of his duty.

D1’s video recorded interviews

1^st video recorded interview

119.D1 in her first video recorded interview said the following.

120.When DPC33530 (one of the interviewing officers) tried to explain that he had previously made a post record of what D1 said at scene after her arrest, D1 just attempted to further explain her position by saying that she distributed name cards stating that there are rooms for lease and those females came over and D1 did not know what things they were doing outside. D1 further denied that she had trafficked those females from mainland China. The word just spread that the rent at her place was cheap and that was why they all went to her. As to what they came to Hong Kong for, D1 really did not know.

121.D1 confirmed that she was the person who rented the 3B premises at $16,800 from someone whose nickname was ‘Shanghai’ and whose real name she did not know. D1 started to rent the premises 3 years ago. Bed spaces were rented out for $100 and the money would be paid to D1. There were 19 bed spaces in the premises.

122.D1 was shown 10 $1000 notes during the interview. She recognized them as $10,000 that ‘Ah Nick’ had given to her. When asked why Ah Nick gave the money to her, D1 replied that Ah Nick told her that his boss had completed a real estate deal and asked D1 to date some females to go and have fun, and Ah Nick said that the money could be treated as tips for the females.

123.D1 further explained that Ah Nick had asked D1 to introduce some females to his friends and bosses to have fun. Ah Nick told her that it was like a private clubhouse in Repulse Bay.

124.D1 said that Ah Nick said that each of the females would be given $2,000, which was to be treated like tips for buying things or something of that kind. The money was for drinking with Ah Nick’s friends and to play with his friends.

125.When asked about how many of those females were found by D1, D1 said that all of them were found by those who were at home, via phone calls and each of them called another person to come over. She had told the 10 odd who were staying in D1’s home, the rest were found by someone for her.

126.When asked if D1 had any agreement with Ah Nick about the money, D1 answered that Ah Nick said ‘partner’. D1 explained that as long as Ah Nick had customers he would ask D1 to help him introduce females to him for having fun with his bosses. D1 said Ah Nick said to her that he always had some bosses who came over from mainland China, some UK and some Japan, USA, mainland China and Hong Kong. Ah Nick said that he needed to find D1 to help him to call some females to accompany his bosses and customers for having fun.

127.When asked about the $2,000 tips per night, D1 explained it was to accompany until he left. Ah Nick however did not mention if there were other activities the females would do and there were no other charges.

128.As to name cards handed out, D1 would have cards to advertise she had rooms to let, anyone who wants to stay in Hong Kong in an upper bunk bed can contact her. There were 3 phone numbers on the card and they were all to contact her. All 3 phones had been seized by the Police as exhibits before the interview. The numbers on the card were 6289 5643, 6274 1218, 137 603 04802. The first number registered by her husband Lee Tak Chi, 2^nd one was registered under name of Hau Chi Keung, her old boyfriend, and the China phone number was registered under D1’s own name.

129.The 10 odd were those who were staying at her place had nothing to do with her and she did not find them, not even a single one. As for the 10 odd ones, some had identity card and some had permits to visit relatives and D1 knew they were holding documents. It was the 2^nd time she introduced them.

130.As to what service the girls would provide, D1 said none, and she did not know if they were introduced to do anything else, nor did D1 mention about other services to them.

131.D1 confirmed a conversation with Ah Nick the previous week where Ah Nick said that he had a group of bosses and asked D1 to call more friends for him, call more beautiful females to go over to D1’s place for Ah Nick to choose for going to Repulse Bay to have fun. Ah Nick however did not tell what fun they would be having.

D1’s 2^nd video recorded interview

132.The 2^nd video recorded interview first of all dealt with the exhibits seized from D1’s home on the night of her arrest. D1 was then asked about specific events that happened on various dates.

133.D1 confirmed she had introduced 4 prostitutes Ching Ching, Siu Fung and Siu Wan to Ah Nick who then took them to a foreign Police officer. When asked why D1 gave the $400 to Ah Nick, she explained that they were ‘table charges’. Four thousand dollars and ‘5 chau one’(5 take 1), there were $800 as the table charges. Ah Nick and D1 then shared it equally.

134.D1 explained the calculation of the $4,000. $500 was for girl sitting at a table and $1,500 for going out, totaling $2,000 per girl. The $500 for sitting at a table included just drinking alcohol.

135.When asked what ‘going out’ meant, D1 explained it was ‘do once’ when asked what ‘do once’ meant, D1 explained ‘make love’. It was $1,500 plus $500 per girl. D1 said for that night, 16^th November, she had introduced 2 girls, which would have been a total of $4,000.

136.As for what ‘5 chau one’ meant, D1 explained that it meant $100 was taken from every $500, so for $4,000, $800 would be taken out as ‘table charge’. Since D1 and Ah Nick were partners, they shared the $800 equally.

137.D1 did not know the full names of the prostitutes and did not know how to contact them at that time. D1 however confirmed that Siu Wan, Siu Fung and Ching Ching had stayed at 3/F, 119 Chatham Road South for a few days. They did pay their rent of $100 per person. The payments were recorded by ‘Ah Yi’ in a notebook. There was a red notebook for D1 to record things herself, while the one ‘Ah Yi’ used to record had a brown cover.

138.As to who this ‘Ah Yi’ was, D1 explained that there was a previous one who worked for 1 month and 6 days, the second one worked for 2 weeks and then left. The current one had been there a few days, her name was ‘Ah Lam’.

5^th December 2012 incident inside 3B premises

Controlling 11 females as prostitutes who were found inside premises that night

139.D1 denied controlling any of the named females for purpose of prostitution. She did not know their names, just their nicknames.  D1 confirmed that the 11 females were living there on the night on a daily rental basis of $100 per day. They did not have any destination they wanted to go that night.

Unlawfully employing someone to work in Hong Kong

140.D1 said she did not know that person in question. She did not know the full name of Ah Lam mentioned above. Ah Lam was there to clean, collect rent and cook. D1 did not know if she held a Hong Kong identity card or two way permit, but seemed to be holder of a two way permit. D1 hired her to help out on a temporary basis since the work was too hard and tiring. Ah Lam had been hired just for a few days. D1 would give her $3,000 for a month. Ah Lam also stayed on the premises.

141.Ah Lam somehow got to know D1’s phone number and she called D1 and went over to her. Ah Lam called to ask D1 if D1 wanted to get an ‘Ah Yi’ to work at her place. D1 gave a phone to Ah Lam for her to use, 62741218, registered under D1’s boyfriend of 10 odd years ago, but the phone charges were paid by D1 herself.

142.Ah Lam cooked for the tenants at $30 or $35 per meal that the tenant would have to pay for. The money was then kept by Ah Lam. D1 confirmed Ah Lam had given a copy of her two way permit to D1, but she did not read the contents and just put that in the safe.

143.When shown the $10,000 cash again, D1 said that Ah Nick had given the money to her and that Ah Nick had said some bosses needed some 20 to 30 girls for accompanying to drink alcohol at $2,000 each. Ah Nick gave her $10,000 as deposit. If the customer wanted to take a girl out, it was $1,200 for one time, that would be to ‘bok ye’, a Cantonese colloquial term for having sexual intercourse.

$6,000 HKD and $800 RMB seized inside envelope inside safe

144.D1 explained that the tenants at the premises would hand over their money to her for safe keeping in the safe and she would write their names on the envelope.

145.D1 confirmed a name card that was given by D1 to Ah Nick, with Yuki and the premises’ address on the card. D1 confirmed it was her name card.

146.D1 was shown a rental receipt for the period between 10^th November and 9^th December 2012 that was found inside the safe.

147.D1 was shown a batch of condoms found from a glass cabinet in the living room of the premises. D1 said she did not know anything about them.

148.D1 confirmed HKD$50,000 cash found in safe.

149.D1 confirmed Indonesian money $300,000, Ringgit $100, HKD$950, RMB$3,490 were found in a wallet and that they were her money.

150.D1 confirmed another bag of HKD$4,000 cash was found in the safe.

151.As for the bunch of keys found on D1 on the night of her arrest, D1 explained that they included a key to the safe, a key to her home in Shenzhen and 2 keys to a place in Tai Po in Hong Kong.

152.D1 confirmed 2 phones that were found on her on the night of the arrest belonged to her, with phone numbers 6289 5643 and 137 60304 802, as pointed out by D1 during the interview.

153.D1 also confirmed a notebook belonged to her, and that was seized from the 3B premises. D1 was asked about the contents of the notebook. D1 explained that they were ‘stage names’ of the tenants and the days they had stayed. For example, ‘Na Na’ was a stage name, and the $110 was the room fees, with the $10 being for Wi-Fi internet access. D1 did not collect their real names nor their identity card numbers. The notebook also contained their phone numbers.

154.Another notebook was found from inside the safe in the premises. When D1 was asked about one of the entries of the contents of this notebook, D1 explained that it meant that ‘Siu Wan’ had paid the room rent for the period from 20^th to 24^th, meaning 4 days’ room money had been collected from her. Behind that entry was a telephone number.

155.D1 was asked about a female named FOK Chun Lai (D2’s name) who was found on the premises when Police entered the 3B premises on the night of 5^th December. D1 answered that she did not know her. When reminded that her nickname was ‘Ah Ma (mother)’, D1 said she knew ‘Ah Ma’ but that she was not too close with her. She had known her for a few months, but D1 did not know what she was doing for a living. This Ah Ma did not tell D1 that she was going to the premises and did not know why she was there. D1 got to know her when she was having massage (tapotement) together in Shenzhen. D1 did not know if the other people inside the flat knew this ‘Ah Ma’.

Mixed statements

156.I find that the contents of the 2 video recorded interviews contain both incriminating and exculpating evidence in relation to D1 and are therefore mixed statements. It is for the court to decide on what weight to give to which part of the statements where relevant.

Defendants’ evidence

D1

157.D1 was fully aware of her rights and elected not to give evidence on the general issue. She did call one defence witness.

DW1

158.Mr. Chan works in the information technology industry as a system consultant. He was not called as an expert witness. He was called by D1 as a witness only because he is familiar with the usage of the WeChat application. Mr. Chan’s evidence is that any registered user of the WeChat application who is already in possession of a user id and the corresponding password can log in to his or her own account through the WeChat application on any mobile phone.

D2

159.D2 is of clear record. D2 was fully aware of her rights and elected not to give evidence nor call any defence witnesses.

Findings

160.It is for the prosecution to prove beyond reasonable doubt all the elements of each of the offence against each defendant. D2 is of clear record, and I will take that into consideration in relation to D2’s propensity to commit the offences charged.

161.In relation to D1, I have not relied on the truth of the contents of any of the text, audio messages, or photos found in the WeChat application or other messages found on any of the undercover Police officer or D1’s mobile phones when considering my verdict.

162.I find the prosecution witnesses honest and reliable witnesses, subject to what I have to say in relation to the evidence regarding charge 4.

Evidence obtained unfairly

163.Mr. Yip for D1 had mentioned orally at one point something about the evidence collected by the undercover Police officer being unfairly obtained and should not be admissible. There was however no mention of this in his written closing submission (see his summary at paragraph 5).

164.Nevertheless, I have considered whether the evidence collected by the undercover Police officer was obtained unfairly because he was operating as an undercover Police officer without D1’s knowledge.

165.It is likely that without the use of undercover Police agents, the Police would not be able to obtain the kind of evidence that D1 had voluntarily put forward in her dealings with Ah Nick. The prostitutes in such an enterprise would always be reluctant to testify against those who might have control over them, or who might have helped them to work as a prostitute in Hong Kong. What the Police had arranged in relation to Ah Nick was reasonable and necessary in the circumstances.

166.I find that although the officer did lie and make up a story about him having to entertain his boss’ customers, his conduct throughout the operation was merely to go along with what D1 had suggested to him at her own initiative. Although the undercover Police officer had built up a relationship of first an acquaintance and then later on, at least in the eyes of D1, a business partner, there is no evidence that the undercover Police officer had conducted any interrogation of D1 during the operation and it is clear from the evidence that D1 had voluntarily said what she said and did what she did to and with the officer.

167.I find that there would have been no basis to exclude the evidence so obtained.

Charge 1: controlling other persons for the purpose of prostitution

168.D1 is being charged under the ‘control, direction or influence’ limb of  s.130(1)(b):

“130(1) A person who-

(a) …; or

(b) … or exercises control, direction or influence over another person for the purpose of …that person's prostitution,

shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 14 years.”

169.Prostitution is not defined in the Ordinance, but in R v McFarlane [1994] QB 419 it was held that the essence of prostitution is the making of an offer of sexual services for rewards, and that it is immaterial that the person making the offer does not intend to perform them and does not do so.

170.Counsel for D1 Mr. Yip relies on the case of HKSAR v Ng Wai Man Raymond, HCMA 503/2012 for the proper interpretation of the element of ‘control’ in a charge under s.130(1) of the Crimes Ordinance.

171.In Ng Wai Man, the appellant communicated over the internet with a Police officer who posed as a prostitute saying that he needed to help his boss to find a long term sexual partner. He told the Police officer that for every transaction she would receive $5,000. Each transaction will last 3 hours and his boss will not use a condom. The officer was expected to have sexual intercourse with the boss, provide oral sex, masturbation and ‘play with toys’. On festive occasions, the boss will give the officer lavish gifts such as LV or Gucci handbags.

172.The appellant then arranged to meet up with the undercover Police officer. On the day of the meeting, the appellant told the officer that she will take the no.8 minibus to his boss’ house in future, that on the coming Saturday she will have to go to his boss’ house for the first time to have sexual intercourse. The appellant will wait for the officer at the same minibus stop to take her to the boss’ home. The officer would receive $5,000 for the transaction. If the boss was satisfied, he would give her $2,000 tips. The transaction would be 3 hours, including sexual intercourse, oral sex and masturbation with stockings. The appellant will not deduct a commission. The appellant was then arrested on the same day after that conversation. He was later charged under s.130(1)(b).

173.The issue on appeal was whether the facts of that case were sufficient to support the conviction of the appellant for the offence. Deputy High Court Judge Woo considered that they were insufficient.

174.The learned judge referred first to the following passage in Sin Kam Wah & Anor v HKSAR [2005] 8 HKCFAR 192; FACC 14/2004 for observations regarding the words “control, direction or influence” by the Court of Final Appeal:

“The offence against s.130(1)(b) of the Crimes Ordinance

55. The words “control, direction or influence” in this sub-section should be given their ordinary meaning and do not import any element of coercion (R v. Fong Yuk Choi [1983] 1 HKC 208). There is nothing in the language or the purpose of the provision to support the notion that it is concerned only with persons who are not, at the time the offence is committed, prostitutes. It is plainly aimed at a defendant whose influence over the persons concerned is in furtherance or by way of assistance of their present or future activities as prostitutes.”

175.Woo DJ referred to the facts in Sin Kam Wah where the 2^nd appellant there “not only had a financial interest in the clubs but also occupied a position of authority in their operations. There was evidence that she regularly paid the wages and signed cheques for payment of accounts in Kushinobo and she was in a position to give directions to the accounts department in the clubs and to make arrangements with the mamasans. The hostesses described her as a ‘boss’, one of them referred to her as ‘holding sway’ and such was her authority and influence that the hostess Ruby was unwilling to complain that the fee that she was paid on the first of the three occasions was insufficient because it might affect her future prospects of work. Although the second appellant ‘asked’ rather than ‘directed’ the hostesses to provide sexual services for the first appellant, there was ample evidence, including all the arrangements she made, to support the conclusion that she exercised control, direction or influence over the hostesses for the purposes of their prostitution.” (emphasis added by Woo DJ)”

176.Woo DJ then referred to the facts of the case of Fung Yuk Choi referred to by the Court of Final Appeal above. There the first and second floors of a building involved were rented for use as a brothel. The 4^th floor was self-owned property and was a dormitory for the prostitutes, which was linked to other places by a secret passage. The prostitutes were recruited in Thailand and came to Hong Kong willingly to be sex workers. The appellants in Fung Yuk Choi brought in customers who paid money to them. Although there was nothing suggesting coercion, the Court of Final Appeal in Fung Yuk Choi held that there was sufficient evidence to support the convictions for contravening s.130(1)(b).

177.Woo DJ compared his case with the other 2 and found it hard to say that the appellant in his case committed the s.130(1)(b) offence.

178.Woo DJ referred to the case of R v Poon Ping Kwok, CACC 271/1991 where the Court of Appeal opined that the words ‘control, direction or influence’ of the provision are targeted at those who “exercise some kind of power over a girl for the purpose of bringing about the girl’s engaging in prostitution”, that mere encouragement was not enough and that some persuasion or compulsion was necessary.

179.Woo DJ was of the view that all the appellants in Sin Kam Wah and Fong Yuk Choi who were convicted of a s.130(1)(b) offence occupied a position of authority in relation to the girls who engaged in prostitution and exercised considerable control over them. Woo DJ found that at the very least, the appellants were people “who had the power to influence them”.

180.Yet, Woo DJ also expressed the view that the word ‘influence’ should be read in context with the word ‘exercise’ to avoid importing too wide a meaning on the word. Woo DJ preferred a more ‘restrictive’ interpretation and found that the appellant’s acts and words in his own case were insufficient in the circumstances of the case to constitute exercising control, direction or influence over the undercover Police officer for her prostitution. What the appellant did and said only amounted to instigating or encouraging her to be a prostitute.

181.In the case of Sin Kam Wah, one of the charges the 2^nd applicant was convicted of was under s.130(1)(b). The facts in that case are different to our present case in that there is explicit evidence from the prostitutes as to how the 2^nd applicant had told them that they would be required to accompany a customer and if he wanted, to provide sexual services.

182.When the Sin Kam Wah case was heard by the Court of Appeal in CACC 520/2003, the Court of Appeal highlighted the following points in that case:

“(a) [sic] Each act of having sexual relations by the 1st Applicant involved an act of prostitution. The 2nd Applicant knew that the hostesses' duties included this.

(2) These activities were all arranged by the 2nd Applicant and also paid for by her or on her behalf. So were the meals and the rooms where the 1st Applicant and the hostesses had sex. There was no evidence even to hint that the 1st Applicant paid either for the meals or, more important for the purposes of the charges he faced, for the hostesses. Mr. Sarony faintly suggested that the prosecution had not proved that the 1st Applicant did not have any reimbursement arrangement with the 2nd Applicant. Apart from the difficulties of proving a negative, the prosecution had in fact shown that the hostesses were arranged and paid for by the 2nd Applicant. Nothing in the evidence remotely suggested that the 1st Applicant paid for any part of it. The inference from the facts was clearly that he did not. It was not necessary for the prosecution, as part of its burden of proof, to disprove matters which were wholly speculative. It is to be observed in this context that neither Applicant gave evidence at trial. The case of Li Defan v HKSAR (2002) 5 HKCFAR 320 is therefore relevant.

(3) The 2nd Applicant was in a position of authority as regards the hostesses to whom we have referred above. One of the hostesses, Ruby, described the 2nd Applicant as a woman "holding sway" and it is indeed clear from the facts that she was in a position to request and instruct the hostesses to entertain customers. This was perhaps hardly surprising given the 2nd Applicant's significant interests in the nightclubs and establishments we have identified (see paragraph 7 above). All this is particularly relevant to the charges under section 130(1)(b) of the Crimes Ordinance.”

183.In our present case, the evidence that there might have been prostitution involved in D1’s business came from 3 sources. They are the evidence of the foreign Police officer who posed as customers and had direct contact with the supposed prostitutes who were introduced by D1; the evidence of PW1 the undercover Police officer who had discussions with D1 as well as paid for the service of the supposed prostitutes; and the evidence in D1’s video recorded interviews.

184.None of the supposed prostitutes had given evidence and we do not have evidence as to their arrangements with D1. There is no evidence as to whether D1 was the person who arranged those who are not from Hong Kong locally to come to Hong Kong from mainland China. There is no evidence if they were arranged by D1 to stay at the premises. There is on the other hand evidence that D1 had printed out name cards to advertise her premises for people who required cheap lodging in Hong Kong. That would not be necessary if D1 was part of a syndicate arranging people entering Hong Kong to stay at her premises and work as prostitutes.

185.There is evidence, from D1, that the girls actually paid for their own lodging and food when they are staying at the premises. There is evidence that the girls, even when they have gone out to meet with the undercover Police officers that they had a choice whether to offer sexual service to the customer or not. One would imagine if D1 had control over the girls she would have made sure that they are not having their period when going out to meet with potential clients having suggested to Ah Nick that the girls are willing to have sex with his boss’ customers. If the girl was lying about having her period, we do not have any evidence about repercussions for lying to D1, which there should be if D1 exercised any control, direction or influence over the girls.

186.I find that despite what D1 said about not knowing what the girls would be doing outside, she actually knew that there was the possibility that sex would be offered by the girls for a reward. In other words, I find that she knew that the girls were operating as prostitutes when they went to meet up with the foreign Police officers.

187.I also find that the undercover Police officer was telling the truth when he described his arrangement with D1 as to the payment for the 2 girls and the commission arrangement between himself and D1.

188.The question however still is whether D1 exercised control, direction or influence over 26 women for the purpose of their prostitution, as particularized in charge 1.

189.There is no evidence as to who the 26 women particularized in charge 1 are. There is evidence in the form of admitted facts that Police arrested a total of 27 females on the day of the raid, but it is also admitted facts that of those 27, 17 were released after the prosecution offering no evidence against them. It is also admitted facts that there were 11 more person who were found on the premises and who were not charged.

190.It must of course be pointed out that the admitted facts in P-58 and P-58a are only between the prosecution and D2. Mr. Yip for D1 did not put his signature on either of the 2 set of admitted facts.

191.It would therefore appear that the prosecution seek to persuade the court first of all that by reason of what D1 said in her video recorded interviews and the evidence of the undercover Police officer, D1 must have exercised control, direction or influence over the 7 girls who had lined up in front of the officer for him to pick to bring out, plus the 1 girl who was brought to replace the girl who was allegedly having her period for the purpose of prostitution.

192.It would also appear to be the prosecution’s position that the court should then draw the irresistible inference that D1 had exercised control, direction or influence over 26 of the 38 women found on the premises on the night of the raid for the purpose of their prostitution.

193.I do not see how that can be achieved on the state of the prosecution evidence.

194.The wording of s.130(1)(b) is specific. The control, direction or influence exercised must be for the purpose of that person’s prostitution. I find that the person must at least be identified by the prosecution. This the prosecution has not done.

195.In any event, in our present case, I find that there is insufficient evidence to prove that D1 was in a position of authority with regard to any of the girls she had suggested to the undercover Police officers for accompanying his boss or having sex with his boss’ customers.

196.On the occasion when 2 of the girls introduced by D1 to meet up with the 2 expatriate Police officers posing as clients, there is no evidence to suggest that D1 had either directly or indirectly paid for the meal or drinks. Nor is there evidence to prove that D1 had requested and instructed the girls to entertain customers. It could well have been the case that the girls had requested D1 to set them up with customers and D1 just acted as their agent, earning a commission in the process.

197.The prosecution did not call as witness any of the girls who were found on the premises on the night of the raid. We have no evidence as to why the girls had chosen to stay at D1’s premises voluntarily or involuntarily and for what purpose. We have no evidence as to whether they were engaging D1 to help them out in finding customers.

198.  It is entirely possible to picture a scenario where the girls had chosen to stay at D1’s premises and engage the assistance of D1 for customers to be introduced and then for the girls to decide whether to offer prostitution service to the customers or not. All that D1 might have done in that scenario would be to perhaps act as an agent for the prostitutes and taking a commission for her effort. As the evidence stands, there are too many holes in the prosecution’s case to prove beyond reasonable doubt that D1 had between the charged period exercised control, direction or influence over the girls for the purpose of their prostitution. I find D1 not guilty of charge 1.

The Alternative Charge 2 against D1

199.D1 is charged under s.139(1)(b) of the Crimes Ordinance.

“139(1) A person who on any occasion

(a) …; or

(b) manages … any premises, … kept as a vice establishment,

shall be guilty of an offence…”

200.In order to prove charge 2, the elements that the prosecution has to prove beyond reasonable doubt is that the premises was being kept as a vice establishment and that D1 had managed it.

“Kept as a vice establishment”

201.Vice establishment is defined in negative terms in s.117 of the Crimes Ordinance:

“(3) Premises, vessel or any place shall not be treated as a vice establishment for the purposes of this Part unless-

(a) the premises, vessel or place are or is used wholly or mainly by 2 or more persons for the purposes of prostitution; or (Amended 90 of 1991 s. 2)

(b) the premises, vessel or place are or is used wholly or mainly for or in connection with the organizing or arranging of prostitution.”

202.There is no evidence that the premises had been used by any of its occupants for the purpose of prostitution.  The prosecution must therefore prove that ‘the premises is used wholly or mainly…in connection with the organizing or arranging of prostitution’: s.117(3)(b).

203.I find that the real issue is whether the prosecution can prove beyond reasonable doubt that the premises was ‘wholly or mainly’ in connection with the organizing or arranging of prostitution.

204.There is no evidence as to how many girls who were arrested or found on the premises on 5 December were tenants of the premises. There is no evidence as to what purpose they were staying in Hong Kong.

205.The admitted facts that there were 27 women arrested, that the prosecution offered no evidence against 17 of them and that there were 11 others Hong Kong identity card holders found inside the premises on the night of the raid are only admitted between the prosecution and D2. There are no admitted facts as between D1 and the prosecution. The facts available for consideration are therefore different between Charge 2 against D1, and charge 3 against D2.

206.There is evidence in the form of the s.65B witness statement of DPC 33812 Yu Shing Man that there were a total of 38 females found inside the premises (see exhibit P-61, paragraph 8). There is however no evidence as to who they were, why they were there and what was their relationship with D1 except possibly tenant and sub-tenants.

207.I find nevertheless that the undercover Police officer is telling the truth when he described how he had visited the premises on 4 different occasions and had discussions about payments and commissions with D1 on the premises in relation to the organizing and arranging of prostitution.

208.I find that Ah Nick did on 16 November 2012 visit the flat 3B premises for the first time after meeting up with D1 in the TST area. I find that after Ah Nick had sat down and had a chat with D1, mentioning that he would have to take care of some foreign customers for his boss, D1 said that her home could accommodate over 20 girls and asked Ah Nick to go there to choose the girls.

209.I find that D1 did discuss charges with Ah Nick, particularly mentioning that it was possible that some of the girls may not want to serve male foreigners and so a higher rate might be charged.

210.The 2 of them continued to discuss on the premises about how it would cost $600 for accompanying guest for drinks for 2 hours and $1,200 for having sex once. After Ah Nick mentioned that the money should be paid by his boss and not the customers, D1 suggested for him to give the money to her first and she will give the money to the girls later on.

211.Ah Nick there and then took out $4,000 and handed over the money to D1.

212.3 days later, D1 told Ah Nick that he could ‘go up any time to pick the girls’. Ah Nick went up to the premises and there he saw about 7 girls who were putting on make up and some were eating. I find that D1 did ask at least 7 girls to line up on the night of 19 November and asked Ah Nick to pick 4 girls for “going out”. I find that he was telling the truth when he said he had already paid $4,000 in advance for those girls 3 days ago on 16 November when he was at the premises. Ah Nick did pick 4 girls and then left the premises.

213.I find that the 4 girls did go to All Night Long bar together with Ah Nick and 2 of them were picked by the undercover foreign Police officers who were posing as Ah Nick’s customers.

214.When later on one of the girls said she was having her period, it was D1 who called Ah Nick to go to the premises to pick and bring a replacement back to the All Night Long Bar. Although there was no money mentioned between the girls and the 2 foreign Police officers, based on the discussions between D1 and Ah Nick beforehand, I find that the girls were there as prostitutes and were in the hotel room with a view to offering sexual services to the Police officers should they so required.

215.I find that D1 is telling the truth in her 2^nd video recorded interview when she confirmed with the interviewing Police officers that she had introduced 4 prostitutes Ching Ching, Siu Fung and Siu Wan and another to Ah Nick who then took them to the foreign Police officer.

216.After Ah Nick had brought the replacement girl to the bar, he returned to the premises. There D1 and Ah Nick discussed about the charges for the girls again because D1 understood that they did not want to serve male foreigners and required a higher charge. There was then the suggestion by D1 to Ah Nick that he should be entitled to a commission. D1 then took out money from the safe on the premises and handed the money to Ah Nick.

217.I find that D1 is telling the truth in the 2^nd video recorded interview about the calculation of the $4,000 that she received from Ah Nick. $500 was for the girl sitting at a table and $1,500 for going out, which totalled $2,000 per girl. D1 was fully aware that going out meant to ‘make love’.

218.I also find D1 was telling the truth when she said that she had split the commission of $800 for that particular occasion with Ah Nick. I find it true that D1 did not know the full names of the prostitutes and did not know how to contact them at that time. They however did stay at flat 3B and paid their rent of $100 per person. 

219.Ah Nick then continued to chat with D1 and mentioned about a large scale conference when he and his boss will be serving a lot of foreign guests. Seizing the opportunity, D1 asked whether it was necessary to find girls to serve them. D1 said that her home could accommodate 20 odd or 30 girls at most, and that Ah Nick could pick them ‘at any time’.

220.During his 3^rd visit to the 3B premises, Ah Nick told D1 that there will be another occasion when he will have to entertain his boss’ customers on 5 December. D1 told him not to worry and that ‘there will be plenty of girls’ for him to choose. Even after D1 left the premises, D1 called him to tell him not to worry and that she was going out to bring back 2 girls, that there will certainly be many girls available for him to choose in the following week.

221.And then on 5December, Ah Nick visited the 3B premises for a 4^th and last time. When inside he saw more than 20 girls. A lot of them were doing their make up and combing their hair. This furry of activities coincided with Ah Nick’s arrangement with D1 about girls to entertain his boss’ customers on the same day.

222.While still on the premises and before leaving with any of the girls, D1 explained the charges and then asked Ah Nick for a deposit. D1 told Ah Nick that ‘another 10 odd girls were coming’ to the premises. Lastly, before the girls were about to go out, D1 asked them to write their names down on some notebook and then announced that each of them should take a condom from her before leaving the premises.

223.  I find that it is an irresistible inference from the facts surrounding the night of 5^th December just before the raid that the girls were being arranged by D1 for prostitution.

224.Furthermore, from the photos of the premises (P-25, photo 28), we can see that there was a notice above the refrigerator that was addressed only to girls and the premises was organized more like a dormitory than a hostel for travellers. Together with the fact of the keeping of the money by D1 for the girls in her safe and the fact that on the day of the raid, only women were found on the premises (apart from the undercover Police officer), I find that it is again an irresistible inference from the evidence before me that the premises was being used mainly for the kind of activities described above, that is to say, for the arranging of girls for prostitution.

225.I find that the matters mentioned above were all matters in connection with the arranging of prostitution and that the premises was being kept as a vice establishment by reason of the definition of a vice establishment in s.117(3)(b).

226.On the night of 27 October, Ah Nick met for the very first time D1 at Neway karaoke. Right after D1 asked Ah Nick if he needed to find someone to keep him company and have fun that night and Ah Nick said yes, D1 was seen to make several phone calls. Shortly thereafter, a girl arrived at the room. This same girl later offered to have sex with Ah Nick for an additional $1,000. Ah Nick did not have sex with her but had paid her $600 for keeping him company that night.

227.I find that to be no coincidence and that it must be an irresistible inference that D1 had made arrangements for the prostitute to go to the karaoke room after Ah Nick had told her he would like company.

228.This evidence must be looked at together with the evidence that later transpired. That is to say, that D1 was renting out bed spaces to females in the premises and that D1 had on other occasions been arranging for prostitutes to be provided to Ah Nick’s boss’ customers. When taken together, I find that it is an irresistible inference that the premises had already been used in connection with arranging for prostitution as early as 27 October 2012.

229.I find that the prosecution has proved beyond reasonable doubt that the premises was being kept as a vice establishment in the period between 27 October and 5 December 2012 in the sense that it was being used mainly in connection with the arranging of prostitution and was kept that way by D1.

230.D1 was the person who entered into the tenancy agreement with the landlord. She was the person who had hired someone to clean the premises and to cook for the girls staying there. On the 4 visits that Ah Nick made to the premises, it is clear from his evidence that no one else but D1 was managing the premises. D1 was the person who was able to take money out from the safe that was in the living room and handed it over to Ah Nick. It is also the evidence of D1 in her video recorded interview that she had kept some money for the girls who were staying on the premises in envelopes that were found inside the safe.

231.In the circumstances, I find that the prosecution has proved beyond reasonable doubt that D1 had managed the premises that was being kept as a vice establishment during the charged period.

232.I convict D1 of the alternative charge 2.

Charge 3: D2 assisting in the management of the vice establishment

233.The evidence against D2 in relation to charge 2 are sparse. According to Ah Nick, D2 entered the premises at about 8:20pm on the night of the raid. According to the s.65B statement of the exhibit officer DPC 33812, he and his team of Police officers entered the premises 3B at around 8:27pm.

234.In the 7 minutes between her arrival and the raid, D2 was seen to have gone in and out of the rooms and telling the girls in the premises to put on their make up, comb their hair and tidy up their clothing. D2 then went up to Ah Nick and said that their girls could certainly play the finger guessing game, drink alcohol and certainly could serve the customers well. D2 also told Ah Nick that he could be rest assured that he will be able to take the girls out to see the customers. D2 did not directly mention anything about the girls having sex with the customers.

235.D2 was present when D1 said in a loud voice to the girls to each get a condom from her.

236.In relation to charge 3, first of all, I find for the same reasons given above that the 3B premises was being kept as a vice establishment between the relevant period by D1.

237.It is for the prosecution to prove that D2 knew that it was being so kept in the relevant period and that she had assisted in the management during the period.

238.It is the evidence of Ah Nick that 5 December 2012 was the very first time that he had seen D2, either on the premises or anywhere else. Although there is evidence that D2 was the tenant of the premises from 2004 to 2008 and that the premises was also being used for sub-letting, there is no evidence as to what D2 had used the premises for during that period.

239.Although there is evidence that it was D2 who introduced D1 to Madam Chu the landlord after D2’s lease had expired, and that D2 had been seen by Madam Chu on the premises on a few occasions, there is no evidence to prove that on those occasions the premises was being kept as a vice establishment and that D2 knew that they were so kept at that time.

240.Based on the evidence available, although the fact that D2 was on the premises just before the girls were going to leave the premises to prostitute themselves and then helped with them getting ready as well as saying the words that she did to the undercover Police officer is highly suspicious that she was part of the whole operation, I find that the prosecution has nevertheless failed to prove beyond reasonable doubt that what D2 did in the short time that she was on the premises amounted to assisting in the management of the premises that was being kept as a vice establishment. There is also insufficient evidence to prove that D2 had in any way assisted D1 in the management of the premises during the rest of the charge period, that is to say, between 27 October and 4 December, both days inclusive.

241.I acquit D2 of charge 3.

Findings in relation to charge 4

242.The particulars of charge 4 state that it was DSPC 50074 who had been obstructed and this is what the prosecution must prove beyond reasonable doubt.

243.Having heard from WPC 11282 and DSPC 50074 in relation to the evidence on charge 4, I find them unreliable witnesses on this particular charge.

244.I do not understand how WPC 11282 could not remember if DSPC 50074 had said anything to D2 during the alleged struggling over the mobile phones. She was present and in close proximity. The struggling was not insignificant according to 50074 because it had caused him to almost lose balance. 50074 had issued not one, not two, but three warnings to D2. There is no reason why WPC 11282 did not hear those warnings.

245.It is 50074’s evidence that WPC 11282 had helped by ‘trying to pull D2’s hand away from’ 50074 during D2’s obstruction. Yet, there is nothing in 11282’s evidence about that, either in-chief or in cross-examination.

246.In fact, during cross-examination, it would appear that the only obstruction 11282 had witnessed was the 2 odd minutes that D2 had been trying to grab the phone back from herself and not anybody else.

247.Counsel for D2 then asked if it was correct to say that after she passed the mobile phones to 50074 she then left D2 and went back to her job duty she was assigned to and WPC 11282 agreed. If what DSPC 50074 said was the truth and the struggling between D2 and himself did take place, there is no reason why WPC 11282 had no recollection about how D2 had struggled with DSPC 50074 and how she had intervened to assist him. The difference between the evidence of the 2 Police officers is inexplicable and unacceptable.

248.Although it is likely that D2 did tussle with either of the Police officers over the mobile phones, the discrepancies I referred to above are serious and go to the root of the offence and cannot be ignored. I find that I cannot rely on the evidence of either WPC 11282 or DSPC 50074 in relation to the arrest and search of D2. I find that the prosecution has failed to prove beyond reasonable doubt how the alleged obstruction had taken place. I find that there is insufficient factual basis for the court to consider as to whether the alleged acts of D2 amounted to an obstruction.

249.I find D2 not guilty of charge 4.