R. v. WONG HUI CHING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.722 OF 1996

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J U D G M E N T

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1. This appellant was charged with managing a vice establishment. His arrest followed an exercise on 11th October last year. He appeared before the magistrate and was represented at his trial. He pleaded not guilty. He was convicted of the offence by the magistrate, and this is his appeal against conviction.

2. There were some 7 or 8 prosecution witnesses. As is common in these prosecutions, the arrest followed the visit to the premises by two police officers posing as customers. In this case, evidence was given by a customer, not a police officer, who was found at the premises during the raid. He gave evidence that this was the second time in the same month that he had visited the premises. On both occasions a hostess was provided and, according to the evidence, masturbation services were provided as well. On 11th October, the defendant had greeted him upon arrival. There was no discussion about price. The defendant simply showed him to a shower place and then, after that, to a room, and arranged for a hostess to go there. There was not much said between him and the defendant. In the room, he received a massage and then the girl asked if he wanted 'service', that is, service beyond a mere massage, which would cost $200 extra. Matters did not progress beyond that point, because that is when the police raided. In cross-examination, he said he thought that there was a price list on the notice board. He, the witness, knew that the price was $350 for two hours, and the $200 was extra for the special or sexual service. The defendant had not mentioned to him the cost of the special service. Questions about this formed a significant portion of cross-examination of this witness by counsel for the defendant.

3. The evidence of the officers came next. A sergeant (PW4) said that he rang the bell and the defendant answered. He asked the officer if he had a familiar hostess. He talked in Cantonese to the officer albeit with a Mandarin accent. The officer said "No", that is, that he did not have a familiar hostess, and then the defendant asked him to change into shorts and to have a shower and said that the place was the cheapest in town, and that the cost would be $350 for 2 hours and that included ejaculation during massage. He had his shower and was then taken to a cubicle to which the defendant brought a girl who in due course conducted acts of sexual intimacy.

4. The other officer who posed as a customer was a police constable. He gave evidence to very much the same effect, in particular that the defendant said that the cost was $350 for 2 hours, including ejaculation. This witness said that he understood what the defendant was saying despite the defendant's accent. This officer had a shower but whilst he was waiting to be introduced to a girl the police party arrived.

5. It would be noticed that there is a stark difference between the evidence of the private customer and that of the officers, in that the customer was not addressed by the defendant as to price and indeed as to any other matters concerning the service which he might expect or the girls that he might want to have attend to him. Furthermore, the price paid by the private customer was $350 plus $200 for special service, and not, as the officers testified $350 all inclusive. The appeal today emphasises that had the magistrate had this disparity in mind he would not have come to the conclusion as he did, namely that the 2 officers were officers of truth. The matter is of further significance in that if the full price charged by the establishment as related by the defendant was $350 and the girls were asking for something on top of that, it suggests that the girls were asking for additional fees for additional services of which the management were unaware.

6. An inspector gave evidence. He led the raiding party and his evidence was that when he spoke to the defendant, the defendant said he was the person in charge, he welcomed customers, introduced girls and collected money, and that he asked the police to give him a chance.

7. The defendant was taken to the police station and an interview took place which was attended by a Mandarin interpreter. The admissibility of the record of interview was challenged.

8. The court also heard the testimony of the interpreter who said that he interpreted everything said back and forth and that the defendant was able to express himself in punti but not accurately. The whole document, it was said, was carefully translated to him.

9. The appellant gave evidence both on the voire dire and on the general issue and the magistrate ruled the statement admissible. The record reveals a full admission by the appellant to the offence charged. He said that his function as the person in charge was to greet customers and receive money and, that he would receive $350 from a customer and would give $150 to the particular girl. The $350 thus received included massage and masturbation. I note that in his evidence on the general issue, he said that the figure of $350 was not one provided by him, but was written on a sign on the wall.

10. As for the general issue, the appellant said that his function at the premises in question was to open the door, take the customer to change his clothes and take him to have a shower. The customer would then be attended to for massage services. He emphasised that vice activities were strictly prohibited on the premises.

11. In the event, the magistrate did not believe him. He believed the two officers who had posed as customers, and, importantly, he believed also the private customer (PW2) and also the officer who gave evidence about the statement taking and the interpreter. He then directed himself correctly as to the elements which had to be proved to establish the offence charged, and in the circumstances, he convicted the defendant.

12. There are a number of grounds of appeal but for the purposes of this judgment, and in the event, it is necessary for me to address only one.

Mr Halley asked this question : "How could the magistrate find that the evidence of the two officers was truthful without considering the stark contradiction to which I have referred with the evidence of PW2?" This, he says, is central to this case.

13. The contradiction in evidence was central in my judgment to the defence case, for the evidence of PW2 ran along lines which precisely accorded with the role which the defendant said he played and with that state of his knowledge of the establishment's mode of operation which he put to the court. He is entitled to say that there was no reason why one customer should be treated differently from another - at least none was suggested by the Crown. And the one private customer who gave evidence, who was not a police officer, and who had no reason to lie and certainly none was suggested, gave an account to the court which portrayed a system in the establishment quite different from that which the officers advanced, and a system which married with his defence. It may well be that the magistrate has addressed the matter and come to a conclusion as to why nevertheless he remained comfortable with the disparate version. But if so, he has not averred to it in his Statement of Findings. It might then be said that the confession should dispel any qualms about this matter since the appellant is said voluntarily to have admitted charging a price $350 including masturbation. But the defendant is entitled to point to the fact that the voluntariness and reliability of that confession was challenged, and that if the magistrate had fully addressed the inconsistencies in the testimony between the officers on the one hand and the private customer on the other, he might very well have taken a completely different view about the credibility of the police evidence as a whole, thus affecting, perhaps, his view of the voluntariness of the statement.

14. In passing, I notice two aspects of the evidence about the statement taking which cause some ground for concern, albeit perhaps in isolation and in themselves not fatal, but in the context of the point now taken, worthy of note. The interpreter gave evidence that in the course of the interview, the appellant rambled on time and again about matters irrelevant to the questions asked. That evidence can be found at pages 38 and 39 of the bundle. For example, the interpreter said that "... when at the time the appellant came to sign he asked many questions and the police explained to him." He was asked "What questions?" and the interpreter said he could not remember "... it seems he said a lot at the time he answered. He said things not to the point, matters about life in the mainland, things like that." When the interviewing officer was asked questions - and this appears at page 43 of the bundle - he asserted that the record of interview contained all of the conversation that he had had. It was put to him that there were things said which had not been recorded, and he insisted that everything was there in the statement. He said that the appellant did not say anything that was irrelevant to the inquiry at the time and that he strictly confined himself to questions and answers and that nothing nonsensical or immaterial had been said.

15. Then, and this appears at page 41 of the bundle, the interpreter's attention was drawn to question and answer 5 of the record of interview. That was an important question and an important answer. The question was "What do you do mainly for being the person-in-charge of Ja Wah Chinese Medicine Massage?" to which the answer recorded was "To greet customers, introduce girls to customers and receive money." When the interpreter was referred to question and answer 5, he said this : "Defendant answered, when boss there money would be given to her, when not he would collect it." That is not recorded in the answer even if the appellant also gave the answer which was recorded.

16. These matters were neither addressed in submission nor in the Statement of Findings and as I say, in themselves are perhaps not of the greatest significance. But I include mention of them because they are unsatisfactory features of the evidence of the interpreter when compared with that of the police officer. And the question of the confession and its reliability could be suggested as an answer to the point taken about the inconsistencies between the police and PW2.

17. In the circumstances which I have described, and given the magistrate's failure directly to address in his Statement of Findings central inconsistencies in the evidence which went directly to the appellant's defence, matters which, in my view, were important to this case, this conviction should not stand. Accordingly the appeal is allowed and the conviction is quashed and the sentences set aside.