R. v. KWOK TAI TAI

IN THE COURT OF APPEAL

1994, No. 377
(Criminal)

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J U D G M E N T

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

1. This is an application for leave to appeal against conviction and sentence by madam Kwok Tai Tai who was the second defendant at the trial before His Honour Judge Caird in the District Court. She was convicted on one charge of assisting in the management of a vice establishment, contrary to section 139(1)(b) of the Crimes Ordinance.

2. The offence was committed on 14 January 1994. In essence the prosecution case was that a vice establishment was being operated in four bedrooms of a hotel in Causeway Bay. The particulars of charge alleged that the vice establishment was operated in Rooms 2117, 2118, 2407 and 2408, Regal Hong Kong Hotel. The applicant was charged with Tsang Tin-yan who was the first defendant at the trial.

3. It was an established fact that Tsang Tin-yan (D1) operated a vice establishment there. The only question for the district judge was whether this applicant assisted in the management of the vice establishment as charged. The judge took as the test of criminality a statement by Roberts, CJ in R. v. Tang King-leung Cr. App. No. 1081 of 1981 where the former Chief Justice said:

"The defendant would be probably found guilty of assisting in the management of a vice establishment if the evidence establishes that he (a) is taking part in some activity which bears a direct relationship to the provision of the immoral services which are available in the vice establishment, (b) is doing something which is necessary to the proper functioning of the vice establishment and (c) knows that a vice establishment is being operated and that what he is doing is assisting in forwarding its purposes."

4. As we have said, the events of 14 January 1994 centred on the hotel rooms in the Regal Hong Kong Hotel, and in particular on two rooms, Room 2118 where the girls who were offering their services waited for customers, and Room 2117, an adjoining bedroom.

5. Three girls gave evidence. They were PW1, PW2 and PW3. Crucial to the conviction was another witness PW4, Senior Detective Inspector Lee who was an undercover officer on that day.

6. The judge in his Reasons for Verdict outlined the prosecution evidence and said that "at the end of the day" he was left only with four matters: (1) The applicant's presence in room No. 2118 on 12 January 1994; (2) her presence again on 13 January according to one witness (PW2); (3) her presence on 14 January, as testified to by one witness at 6pm, and then later when Detective Inspector Lee (PW4) arrived on the premises; and (4) what this applicant said to PW4 when he came into room 2118 seeking the services of prostitutes.

7. As regards the second finding it is common-ground that the judge erred in that the witness PW2 did not testify as the judge thought she did regarding the applicant's presence in the hotel room on 13 January.

8. It is quite clear that a finding of mere presence in the hotel room by itself would not have been sufficient to ground a conviction, suspicious though such presence might have been without an explanation from the applicant. The conviction therefore depended on whether the judge was right to have accepted the testimony of PW4 Detective Inspector Lee. His evidence was to this effect: Having made telephone contact previously, he went up to room 2118. D1 opened the door. Inside the room there were three girls sitting on a bed. Beside the three girls, sitting on a chair near the head of the bed, was the applicant. D1 first said to PW4 "There are three girls there; make any choice you like." PW4 walked towards the girls and the applicant then said to him "Have you come alone? Is it very cold outside?" and when PW4 replied "Yes" the applicant continued: "Here are three girls, see which one you like." PW1 then pointed at the girl sitting in the middle who turned out to be PW1 Miss Chan Ka-ying. Having been selected PW1 stood up and PW4 then went with PW1 to the adjoining bedroom. Eventually she went into the bathroom to take her clothes off in preparation for a bath. The witness heard the water running and at this point made a phone call and the police party arrived on the premises.

9. Plainly, the judge could not have convicted unless he was sure that PW4's testimony was both truthful and accurate. PW4 was there of course on official duty. It was his responsibility to observe and recall. By contrast the three girls were present in the room waiting to serve customers and there was no particular reason why they should have remembered any conversation taking place at that time. In accepting PW4's testimony the judge said this:

"I accept the inspector's evidence and in doing so hold that the girls although not necessarily lying, I don't believe they were, they were either mistaken or distracted."

10. The judge's finding was that when PW4 entered the room the television set was on and the girls were watching a popular programme. The girls' understanding of Cantonese varied. They were illegal immigrants from China. One understood Cantonese well; one in fact understood no Cantonese. The judge thought that the programme might have afforded "some entertainment and attracted attention."

11. What troubled the judge was this. According to the testimony of the girls this applicant said nothing at all. If that assertion was accurate it meant that there was a sharp conflict between the testimony of PW4 and that of the three girls PW1, PW2 and PW3. The judge, however, having heard all the evidence, concluded that there was no conflict in the testimony, between the girls on the one hand and the inspector on the other. He reconciled the difference by concluding that, apart from the distraction of the television to which we have just referred, there might also have been "language difficulty". In this regard it is common-ground that his summary of the linguistic disability of those three witnesses was not wholly accurate. But, as it seems to us, this was a minimal matter.

12. At the end of the day what the judge had to be satisfied on was whether PW4 was accurate and truthful in his testimony. If he was, there was plainly enough evidence to convict. What could the applicant have been doing in the hotel bedroom, receiving customers there with D1, if not assisting him in the running of a vice establishment? It is quite clear from the Reasons for Verdict that the judge was satisfied beyond reasonable doubt in that regard.

13. In our judgment the criticisms which have been made by counsel on behalf of the applicant concerning the evidence at the trial are not sufficient to displace that clear and unequivocal finding. It must follow therefore that the conviction is neither unsafe nor unsatisfactory and the application for leave to appeal against conviction must be dismissed.

14. We now turn to the question of sentence. The judge imposed a sentence of imprisonment of 15 months. Counsel has referred to us a number of cases, particularly on appeal from the magistrates, which indicate that upon summary conviction the sentences imposed in the magistrates courts have been of an order rather lower than the 15 months imposed in this case. We have regard to the fact however that the maximum sentence for this offence upon indictment is 7 years' imprisonment.

15. This applicant is not entitled to any benefit on account of her record. She had in October 1986 been convicted of the offence of keeping a vice establishment, for which she was sentenced to imprisonment for 18 months suspended for two years, and fined $5,000.

16. The judge in considering sentence also asked himself whether there were grounds for suspending the sentence and came to the view that in the circumstances of the case he could not do so. Whilst arguably the sentence of imprisonment of 15 months might be said to be on the high side we are not persuaded that it is manifestly excessive. Accordingly the application for leave to appeal against sentence is refused.