THE QUEEN v. LEE LEUNG WAI

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

H E A D N O T E

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

LIVING ON EARNINGS OF PROSTITUTION - PRESUMPTION MAY ARISE IN CASE OF SINGLE TRANSACTION - EACH CASE MUST BE CONSIDERED ON OWN FACTS - PRESUMPTION APPLIED ON APPEAL.

    IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 886 OF 1987

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

J U D G M E N T

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

1. The appellant (D2) was convicted, together with another man (D1), who has abandoned his appeal, by Miss Wong at South Kowloon Magistrates Court, of living on the earnings of prostitution, contrary to section 137(1) of the Crimes Ordinance, Cap. 200.

2. It was a case of sexual entrapment on the part of police officers masquerading as customers looking for prostitutes. The magistrate found the prosecution witnesses to be truthful and accurate in their evidence, which she accepted. She did not believe the evidence of either defendant. She made the following findings of fact :-

"(a)     At about 9.20 p. m. on 8th May 1987, P.W.1 and P.W.2 each received four marked $100 banknots from P.W.3. At about 9.30 p.m., they went to 5th floor, 137 Shanghai Street where they were received by D1. D1 told them the prices of Thai girls, Filipina girls and 'Pore' girls and the sexual services by 'Pore' girls,. P.W.1 and P.W.2 ordered two 'Pore' girls for sexual services at a cost of $400 each from D1. D1 later brought Cheng Fung-yee (Cheng) to P.W.2 to perform the sexual services which D1 agreed to provide. D1 told P.W.2 to pay Cheng. P.W.2 paid Cheng with the four marked $100 banknotes given to him by P.W.3 After receiving the payment, Cheng undressed herself in front of P.W.2 but no sexual activity took place between them. Cheng had offered her body to P.W.2 for acts of lewdness in return for the payment P.W.2 made to her, The $400 P.W.2 paid to Cheng was earnings of her prostitution. D1 brought Cheng to P.W.2 knowing she was a prostitute and knowing she was required to perform sexual services for payment. Cheng was offering her body for acts of lewdness for payment and was a prostitute. D1 was in the employment of Cheng knowing that she was a prostitute and assisting in her prostitution, he was paid by Cheng for his services knowingly with earnings of the prostitution. D1 knowingly lived upon the earnings of prostitution of Cheng. D1 was a man.

(b)    D2 later arrived at the premises with Liong Wai-leng (Liong). He brought Liong to perform the sexual services P.W.1 and P.W.2 requested and which D1 agreed to provide. In the presence of D2 and Liong, P.W.1 paid $400 to D1, The $400 were the four marked $100 banknotes given to P.W.1 by P.W.3. After the payment to D1, Liong undressed in front of P.W.1 but no sexual activity took place between them. Liong had offered her body to P.W.1 for acts of lewdness in return for the payment P. W. l made to D1. The $400 P. W. 1 paid to D1 was earnings of the prostitution of Liong. D2 brought Liong to the premises knowing she was a prostitute and knowing she was required to perform sexual services for payment. Liong was offering her body for acts of lewdness for payment and was a prostitute. D1 supplied Liong to P.W.1 to perform acts of lewdness knowing that Liong was a prostitute. D1 received $400 from P.W.1 knowing it was earnings of the prostitution of Liong. Dl knowingly lived upon the earnings of prostitution of Liong.

(c) D2 received $300 from D1. That payment came from the earnings of the prostitution of Liong. It was received by D2 knowing that it was such earnings and was payment for bringing Liong to the premises to engage in prostitution. D2 knowingly lived upon the earnings of prostitution of Liong. D2 was a man."

3. Section 137 provides:-

"(1)     A man who knowingly lives wholly or in part on the earnings of prostitution shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 5 years.

(2)     For the purposes of subsection (1), a man who lives with or is habitually in the company of a prostitute, or who exercises control, direction or influence over a woman's movement in a way which shows he is aiding, abetting or compelling her prostitution with others, shall be presumed to be knowingly living on the earnings of prostitution, unless he proves the contrary."

4. In convicting Dl the magistrate found the presumption in subsection (2) arose and was not rebutted. She was also satisfied, however, that there was sufficient evidence without the presumption on which to convict Dl. In the case of this appellant she does not refer to the presumption and it must be taken that she did not consider it arose.

5. When the appellant aid the prostitute entered the room, D1 asked P.W.1 'Does this one suit you?' While P.W.1 was looking at her, the appellant said "This 'Pore' girl has just arrived by plane." P.W.1 then agreed to have her and gave D1 $400. The magistrate found that the only conclusion to be drawn from this evidence was that the appellant had brought the girl to the premises knowing she was a prostitute required to perform sexual services. Since he received part of the earnings of the prostitution from D1, as a reward for bringing her to the premises, he was guilty of living on her earnings.

6. Mr Hampton submits that the conviction can only be sustained if the court finds that the presumption is raised. He further submits that, even if the appellant escorted the girl to the apartment house, knowing she was going there as a prostitute, this does not amount, to the "control, direction or influence" required to trigger the presumption.

7. Mr Harris, for the Crown, does not concede that the conviction cannot be sustained without the use of the presumption, but he submits that the appellant was caught by the presumption and that this court should apply it, on the authority of R v. Ngan Kai Shui⁽¹⁾ even though the magistrate did not do so.

8. In R v Leung Chor⁽²⁾, on which Mr Hampton relies, it was not disputed that the female in the case was a prostitute, nor that the appellant had introduced her to a male customer, with whom she went into a bedroom in the appellant's flat. But. the evidence showed that the whole consideration payable by the customer was to go to the prostitute, and there was no evidence to show that there was any standing arrangement between her and the appellant, or that the appellant at any time had directed her movements,

Blair-Kerr J, said at p. 832:-

"I do not think that sub-section (3) of section 17 of the Protection of Women and Juveniles Ordinance was intended to apply to cases of this kind. The whole tenor of the sub-section connotes the existence of some kind of continuing relationship between the prositute and the accused. It applies where the accused lives with the prostitute. It applies where he is proved to have been habitually in her company. It applies where he is proved to have had control, direction or influence over her with a view to his aiding and compelling her prostitution. There is no evidence that Law Ching Ching was living with the appellant or that she was habitually in his company. She had known the appellant for a month, according to her; but there was no evidence that she had on any other occasion prostituted herself either at Golden Phoenix House or anywhere else. There was no evidence as to Laws Ching Ching's age and (assuming she was under 21) whether the appellant could in any sense be said to have been in loco parentis to her, or that she was an employee of his, or even that he had persuaded her to come to Golden Phoenix House. According to her, she came to this establishment on this one occasion, the 11th October, of her own 'accord.' In a sense the fact that the appellant allowed her to use his flat for prostitution amounted to 'aiding' her prostitution that night, But no one could deduce from that one incident that she was under his control, direction or influence, Whatever Lau meant by the words 'she was told to go', these words could not by themselves constitute sufficient evidence for any reasonable tribunal to conclude that this girl was under the appellant's control, direction or influence, and there was no other evidence from which such a deduction could reasonably have been made. Therefore subsection (3) in my view should not have been applied in this case."

And again at p. 834 he said :

"But even supposing there had been evidence that the appellant was to receive a part of the girl's fee that night, is this sufficient evidence for any court to say on this charge that the appellant was living on that girl's earnings? I do not think that it would have been sufficient. What the prosecution seems to have failed to appreciate in this case is that it must be very rarely that a court can possibly be satisfied that an accused person is living on the earnings of prostitution if the evidence called relates exclusively to the behaviour of one woman on one occasion on one day."

9. This case was considered in R. v. Leung Cheong⁽³⁾, in which the facts bore a resemblence to those in the present appeal. Wong J. took the view that Blair-Kerr J. had not based his decision on any principle of law, but upon a review of the reported decisions. See R. v.Hill⁽⁴⁾Wong J. concluded at p.6 :-

"The fact that a thing is rarely done is not the same thing that it cannot be done. There may be many reasons why few cases involving one single transaction have been brought and it is not necessary for me to go into them. Furthermore whether a court can be satisfied or not in such a situation is not a question of law but entirely a matter of evidence which is to be decided on an individual basis depending on the merits in each and every case.''

10. In R. v. Woo Shu-wai⁽⁵⁾ the appellant ushered a prostitute to a room where a customer was waiting, and accepted money in consideration of sexual acts between the prostitute and the customer. Addison J. cited the following passage in R. v. Fong Yuk-choi⁽⁶⁾ in which the Court of Appeal was considering section 137(2) of the Ordinance :-

"On the first point, the trial judge in his lucid and careful judgment acknowledged that he could find little authority in the precise meaning of the words 'control, direction or influence'. He rejected the defence contention that controlling must amount to something more than supervising and that it implies a lack of freedom of some kind. We agree with him these words should be given their ordinary and natural meaning."

11. Addison J. concluded: -

"These three words, in my opinion, are designed to catch those who are in fact exercising power of a kind over a woman where the purpose of them doing so is to further the girl's acts of prostitution. It is not intended that these words should be dissected but looked at in a common sense manner and as a whole with one eye firmly on the purpose for the legislation itself. Dictionary meanings were supplied to this Court. 'Direction' is defined in the shorter Oxford English Dictionary as -

'the action or function of directing, aiming, guiding, instructing or administering; conduct; instruction; management, administration'.

It would in my opinion be defeating the object of the legislation to have to prove of necessity that there exists some distinction in the status between the person giving the direction and the person receiving it. Any conduct of a kind which results in aiding and abetting prostitution by the defendant, which conduct is employed by him to further the continuance of or to aid and abet prostitution whether by control, direction or influence or by any other Victorian word which would today establish that the defendant is engaged in ensuring that the girl continues in prostitution would fall within this presumption."

12. The decision in Woo Shu-wai was followed in R. v. Ip Ping Kan⁽⁷⁾ in which the facts were similar.

13. The English Court of Appeal in R. v. Farrugia⁽⁸⁾ found that the presumption the legislation is the same - did not apply to the facts of the case, but nevertheless upheld the convictions. The evidence in that case showed that over a period a group of prostitutes assembled nightly in the premises of an escort agency, waiting for assignments for prostitution to be given them by the Owner or whoever was acting for him. In attendance there were a number of mini-cab drivers waiting to take the prostitutes to their customers. On arrival the drivers collected the agency's fee and the taxi fare from the client. For the drivers the prostitutes provided opportunities of earning money which they thought worthwhile taking. They knew what the girls were intending to do.

14. The court considered that the presumption subsection had no application to the case, but nevertheless held that what the drivers got from introducing the girls to their customers came from the intended prostitution and could be properly regarded as the earnings of prostitution.

15. Presumably the presumption was found not to arise in Farrugia because the drivers were transporting the prostitutes, but were not exercising direction over their proposed subsequent prostitution.

16. Here the situation is different. The appellant's appearance, together with the prostitute, soon after the police officers' request for 'Pore girls' can only be explained by a message from D1 or someone acting on his behalf. Any other conclusion could be too coincidental to be reasonably possible. That fact, coupled with the appellant's recommendation of the girl and the finding on his person of $300 out of the $400 fee, is very strong evidence that the appellant was controlling, directing or influencing the prostitute's movements in a way which showed he was aiding, abetting or compelling her prostitution.

17. Although the evidence related to a single transaction, it was a far cry from the facts of Leung Chor. I agree with Wong J, that each case must be considered on its own facts. Here, in my judgment, the appellant was caught by the presumption. He himself did not give evidence and there was nothing in the prosecution case that tended to rebut it,

18. The case would have taken precisely the same course had the magistrate held that the presumption did arise . No injustice is caused  to the appellant by this court applying it on appeal.

19. It is not therefore necessary to consider whether the conviction should be upheld for the reasons given by the magistrate. The appeal is dismissed.

(1) [1973] H.K.L.R. 161

(2) [1963] H.K.L.R. 825

(3) M.A. 568 of 1987

(4) [1914] 10 C.A.R. 56

(5) M.A. 845 of 1987

(6) C.A. 819 of 1983

(7) M.A. 791 of 1987

(8) [1979] 69 C.A.R. 108