RE DAVID PERRY, QC

HCMP 751/2019

[2020] HKCFI 1521

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 751 OF 2019

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J U D G M E N T

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1.  This is an application for ad hoc admission of Mr David Perry QC for the purpose of appearing for the two appellants in CACC 368/2016, an appeal from DCCC 199/2016, to be heard by the Court of Appeal on 8 and 9 September 2020. It is opposed by both the Bar Association and the Secretary for Justice.

2.  The application first came before me on 31 May 2019.  Ms Maggie Wong SC,[1] for the applicant, sought to rely on a proposed constitutional challenge to section 137(1) of the Crimes Ordinance, Cap 200.[2]  It had an obvious significant impact on the application but was not raised in the Grounds of Appeal.  After some discussions, Ms Wong applied for an adjournment for leave to be obtained from the Court of Appeal to raise the point and to amend the Grounds of Appeal consequentially.  The application for adjournment was not opposed subject to costs.  I then adjourned the hearing of the application to a date to be fixed with costs reserved.

3.  The appellants have since obtained leave from the Court of Appeal and amended the Grounds of Appeal.  The applicant applied to restore the hearing of the application when the Bar Association and the Secretary for Justice maintained their opposition.  Pursuant to my directions, the parties have lodged further written submissions.  With the parties’ consent, the application is to be disposed of on paper without further oral hearing.

4.  I now hand down my judgment.

DCCC 199/2016

5.  The 1^st appellant was charged with the offence of living on earnings of prostitution of others (“LEPO”), contrary to section 137(1) of the Crimes Ordinance.  The 2^nd appellant was charged with the offence of aiding, abetting, counselling and procuring the 1^st appellant’s commission of the offence, contrary to the same provision and section 89 of the Criminal Procedure Ordinance, Cap 221.  They both denied the charges and stood trial before HHJ Alex Lee (as he then was).[3]

6.  The entire prosecution case was agreed by way of Admitted Facts under section 65C of the Criminal Procedure Ordinance. It may be briefly stated as follows.

7.  During routine cyber surveillance of the Internet in July 2014, a website called www.hkbigman.net (“hkbigman”) with an online members’ forum appeared to be promoting “compensated dating”.  The online forum had various sub-categories, one of which was an “Adult Forum”.  Female memberships were free of charge.  There were three levels of female membership based on age, appearance and exclusivity.  There were different classes for male membership ranging from Ordinary members to VIP to Prestige VIP members.  VIP members were further divided into New VIP members and Accredited VIP members.  Ordinary membership was free of charge.  VIP membership cost HK$550 for the first year with reduced annual fees thereafter.  Prestige VIP membership could be obtained with a one-off payment of HK$8,000.  The different classes members gained different levels of access to the details of female members.  Prestige VIP members gained full access to all female members’ contact and personal details, including photographs and sexual preferences.

8.  The design of the Adult Forum was such that it was for male members to view information about female members, make requests for dating and wait for a reply; but not the other way round.  While male members were not required to provide their personal information, female members were required to state their ages, heights, measurements and contact details together with an “accreditation” photograph and a “reference” photograph.  Photographs showing their figures along with descriptions, which were explicitly sexual, were posted.  Female members were not required to provide any information about their educational backgrounds, work, hobbies or interest.

9.  During police’s covert operation, an undercover woman police officer (PW1) registered as a female member.  She was contacted by the 1^st appellant to discuss her accreditation.  He then posted the message “Newbie needs your help to get accredited” in the VIP Secret Information Group of the Adult Forum and sought assistance from others to write a report on PW1.  Subsequently, a male member met up with PW1 in Mongkok.  They talked about sexual practices.  He explained to PW1 that accreditation meant that VIP members and one Diamond VIP member would assess her performance and then post reports on hkbigman.  PW1 would then become an “accredited” female member.  He further mentioned that the prevailing fee was HK$1,500 per “Q”.  Having told PW1 about his own sexual preferences and after suggesting that they retire to a nearby hotel, PW1 made an excuse and left.

10.  An undercover male police officer registered as a member and having paid the requisite fees, gained access to the full information and details of female members in the “Dating Zone”, which included the sexual practices on offer, the prices based on the activity and time involved and travel expenses.  Another undercover male police deposited HK$550 into the 1^st appellant’s bank account and became a VIP member.  He subsequently received a posting from the 1^st appellant to help “accredit” PW1.

11.  The 1^st appellant was the registered administrator of hkbigman since August 2010.  He derived his income from the website by way of male membership fees and gold coins.  At the time of arrest, his bank accounts showed a total balance of some HK$1.8 million.

12.  The 2^nd appellant was the deputy moderator of the Dating-with-Girls Report Group of hkbigman.  He admitted in a video-recorded interview that he joined hkbigman in 2013 and became an assistant webmaser in June 2014.  He knew that the Adult Forum provided a platform for promoting and facilitating sexual services for payment. However, he claimed that he himself received no reward, working only on a voluntary basis.

13.  The appellants did not give evidence or call any witness.[4] The defence case was that the income which the 1^st appellant derived from hkbigman was not capable of being “earnings of prostitution” and accordingly did not come within the offence of LEPO.  Thus as a matter of law, the 1^st appellant’s activities were not illegal and the 2^nd appellant could not be guilty of assisting the former in what he did.

14.  After reviewing the English authorities, the trial judge rejected the contention that the 1^st appellant’s income from hkbigman did not in law amount to the “earnings of prostitution”. He held that such income was referable to and so closely connected with prostitution or intended prostitution of its female members that it amounted to “earnings of prostitution” of others.  He also noted that section 137(2) of the Crimes Ordinance provided, inter alia, that a person who exercises control, direction or influence over another person’s movements in a way which shows that he or she is aiding, abetting or compelling that other person’s prostitution with others, shall be presumed to be knowingly living on the earnings of prostitution, unless he or she proves the contrary.  “Direction, influence and control” under section 137(2) was only a piece of evidence, rather than an element of offence, the absence of which was not necessarily fatal to the prosecution case.

Grounds of appeal

15.  The appellants will raise the following grounds of appeal in the coming appeal:

(1)     The income of the 1^st appellant was not capable in law of amounting to the “earnings of prostitution of others”.

(2)     The income received by the 1^st appellant was not referable to and closely connected with prostitution or intended prostitution, so as to amount to the “earnings of prostitution of others”.

(3)     Although the exercise of control, direction or influence over another person’s movements was not an element of the offence of LEPO, the absence of such control, direction or influence was fatal to both convictions.

(4)     Since no offence of LEPO could be made out against the 1^st appellant, the 2^nd appellant could not be shown to have aided, abetted, counselled and procured the 1^st appellant’s offence.

(5)     Section 137(1) of the Crimes Ordinance, to the extent that it is not focused solely on exploitative behavior or exercising control, direction or influence over women for the purposes of prostitution, is inconsistent with articles 30 and 33 of the Basic Law (“BL”) and articles 14 and 16 of the Hong Kong Bill of Rights (“BOR”), and is unconstitutional.

16.  Grounds 1 to 3 are interrelated and concern the point of law of what constitutes “earnings of prostitution of others” and the scope of the offence of LEPO.  It is essentially a matter of construction of section 137(1).  Ground 4 stands or falls together with Grounds 1 to 3.  Ground 5 involves the constitutionality of section 137(1) when assessed against the right to privacy (BL30 and BOR14), the freedom of choice of occupation (BL33) and the right to freedom of expression (BOR16).

Overview of the parties’ stance

17.  Ms Wong first submitted that the appeal involves unusual complexity.  The determination by the Court of Appeal of the scope of LEPO involves statutory construction and the nuanced understanding of LEPO in a number of common law jurisdictions.  It also calls for the considerations of the constitutionality of LEPO in the context of Hong Kong. The interplay of these issues makes the appeal more complex.  It is therefore in the public interest to admit an overseas counsel of the applicant’s caliber who would add a significant dimension to the resolution of the complex legal and constitutional issues.

18.  Ms Wong next submitted that the constitutional issues to be determined by the Court of Appeal will have a substantial impact on Hong Kong law.  It will substantially develop the area of constitutional law and LEPO in Hong Kong.  It will have a significant impact on how various businesses (including the dating businesses and those which may supply goods or services to prostitutes) would operate in Hong Kong and will have a substantial impact on local jurisprudence.  In fact, the prosecution also acknowledged the significance of the appeal.  In its letter to the defence dated 30 May 2019, it stated that the appeal “concerns an important legal issue which would affect future case(s) in the pipeline”.  It is thus in the public interest for the matter to be argued by an overseas counsel in the applicant’s standing.

19.  Ms Wong also prayed in aid the level of court factor.  She pointed out that it is the first time for the Court of Appeal to consider the constitutionality of section 137(1) and the matter will likely go further to the Court of Final Appeal.  The applicant will add a significant dimension to the case.

20.  Lastly, Ms Wong submitted that the applicant, an expert in criminal law and a counsel of sufficiently high quality and standing to make a useful contribution or add a significant dimension to the appeal, will bring cross-fertilization benefits to the local Bar.  The appellants’ need to have adequate representation and their right to instruct counsel of their own choice should also be taken into account.

21.  In opposing the application, Mr Derek Chan SC,[5] for the Bar Association, submitted that the appeal requires no more than ordinary exercise of statutory interpretation and constitutionality assessment.  The principles applicable to assessing whether an offence creating provision is constitutionally compliant are now well established, and are not matters of unusual difficulty or complexity for which the Court of Appeal would require assistance of an overseas specialist.  The Court of Appeal will already be amply assisted by well-qualified and competent counsel such as Ms Wong in the appeal.  The court must be satisfied that the applicant would add a significant dimension to the existing representation and it would be appropriate to have his input in the case.

22.  Mr Chan stressed that the significance of the appeal has been overstated.  The principles underlying LEPO have been extensively discussed in existing authorities.  The Court of Appeal will interpret the meaning of “earnings of prostitution of another” and apply the principles to the facts.  This is no more than an ordinary exercise of statutory interpretation and application.  The reference to the development in other common law jurisdictions where offence analogous to LEPO is unlikely to shed light on the interpretation of the offence in Hong Kong.  Those developments do not render the appeal unusually difficult or complex.  As to the constitutional challenge, Mr Chan submitted that the Court of Appeal will not be operating in uncharted territory because it is likely to be assisted or guided by a wealth of authorities on similar provisions under the European Convention of Human Rights: see, for example, Bensaid v United Kingdom (2001) 33 EHRR 10, Campagnano v Italy (2009) 48 EHRR 43, and the cases cited therein.  Mr Chan also submitted that the proportionality analysis, which is well established, would have little effect on future constitutional challenges in respect of other prostitution-related offences.

23.  Finally, Mr Chan submitted that the applicant cannot rely on the Court of Final Appeal factor and there is no evidence to show that, as eminently as he may be, the applicant possesses any expertise in the specific area of LEPO.

24.  Mr Jonathan Kwan, for the Secretary for Justice, submitted that while the facts of the case may arguable present a novel situation, the legal principles on construction of section 137(1) have been thoroughly considered by the relevant English authorities, such as R v Ansell [1975] QB 215 and R v Farrugai (1979) 69 Cr App R 108.  Thus the arguments to be advanced before the Court of Appeal merely involve the application of existing legal principles in the context of the case.

25.  Mr Kwan readily accepted that because of the novelty of the factual matrix, it is possible that the appeal may have some impact on local jurisprudence as it may affect websites/fora which adopt a similar business model.  But he argued that the impact does not appear to be substantial.  It is premature at this stage to assess if the appeal will affect other prostitution related offences.

26.  On the constitutionality of section 137(1), Mr Kwan submitted that it also involves the application of well-established legal principles.  As such, it cannot be said to be of unusual difficulty or complexity.

27.  Lastly, Mr Kwan accepted that the applicant is a leading silk with profound experience in criminal law both in England and Hong Kong.  However, the applicant has not demonstrated that he has expertise on the issues to be determined at the appeal.

My views

28.  The legal principles governing ad hoc admissions of overseas counsel have been thoroughly discussed and considered by the court in a number of judgments: see Re Perry QC [2016] 2 HKLRD 647, at [24] for a useful summary.  For present purpose, I do not propose to rehearse them.

29.  Applying the principles to the present case where the competence of local counsel is not in doubt, the determinative factor is whether the appeal raises issues or matters of unusual difficulty or complexity such that he can add a significant dimension to the case: see Re McGregor QC [2003] 3 HKLRD 585, at [11(2)] and [11(3)]; Re Parsons QC [2015] 4 HKLRD 781, at [16]; and Re Tim Owen QC, unreported, HCMP 2531/2016, 19 October 2016, at [23].  Breaking it down, the first question is whether the appeal raises issues or matters of unusual difficulty or complexity; and if yes, the next question is whether the applicant can add a significant dimension to the case.  For the reasons stated below, I will answer both questions in the affirmative.

30.  Section 137 is modeled on section 30 of the English Sexual Offences Act 1956.  There is a wealth of English authorities on section 30 where the underlying principles concerning LEPO and their application in different factual contexts were discussed.  Some, like the coming appeal, concerned conduct which did not involve control, direction or influence over a prostitute’s movements.  See, for example, Shaw v DPP [1962] AC 220; R v Ansell, supra; (1974) 60 Cr App R 45; R v Farrugia, supra’s; R v Stewart (1986) 83 Cr App R 327.  The propositions derived from those English cases will no doubt shed a considerable light on the construction of section 137(1).

31.  However, it does not mean that the construction of section 137(1) is a straightforward exercise.  Far from it.  It entails an in-depth and careful analysis of the legal policy and principles underpinning the offence of LEPO derived from the legislative materials and the authorities to be considered, where appropriate, against the contemporaneous societal context.  Perhaps even more difficult is the application of the construction of section 137(1) to the novel factual scenario involving the receipt of membership fees from male members of a web-forum which on the prosecution case facilitated the prostitution of its female members without, however, evidence of control, direction or influence over the latter’s movements.

32.  A further unusual difficulty, with an obvious greater magnitude, is the constitutional challenge to section 137(1). Although the proportionality analysis is well settled, its application to the facts will raise complex arguments.  It is most likely that the Court of Appeal will also need to consult overseas jurisprudence including Strasbourg cases on the subject.

33.  The appeal will no doubt have a significant impact on the development of the local jurisprudence on the offence of LEPO.  It will also have immediate practical consequences for many social networking and dating websites and mobile applications emerged in recent years.  By resolving the issues raised in the appeal, the Court of Appeal will draw the legally permissible boundary for their operations.

34.  The applicant is widely recognized as a leading expert of highest caliber in criminal cases both in England and Hong Kong.  Both Mr Chan and Mr Kwan queried if he has the necessary specific expertise in dealing with the constitutionality of section 137(1).  But as submitted by Ms Wong, what is determinative is the applicant’s expertise in the wider issues of constitutionality of a criminal offence.  And the applicant has vast experience in this regard: see for example the recent cases of R (Nicklinson) v Ministry of Justice [2015] AC 657, where he appeared for the Ministry of Justice to deal with the question of whether blanket prohibition against assisting suicide is compatible with the right to private and family life under the European Convention on Human Rights.  With such experience and expertise, the applicant is plainly in a position to add a significant dimension to the appeal: see Re Pannick QC, HCMP 2475/2013, 18 October 2013, unreported, Stock VP (as he then was), at [20].

35.  Finally, I agree with Ms Wong that the issues to be argued in the appeal are those likely to go further to the Court of Final Appeal.  It is a further reason why the applicant should be admitted to argue the appeal.

Conclusion

36.  For the above reasons, I allow the application with the usual undertaking that the applicant must appear with local counsel already instructed to argue the appeal.

37.  On costs, I will direct the parties to lodge their written submissions within 14 days from the handing down of this judgment.  It will then be disposed of on paper.

38.  Lastly, I would like to thank counsel for their assistance.