HKSAR v. NG WAI MAN RAYMOND

[English Translation – 英譯本]
HCMA 503/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 503 OF 2012

(ON APPEAL FROM ESCC NO. 3786 OF 2011)

________________

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J U D G M E N T

Introduction

1.  Having heard the appeal on 24 January 2013, I adjourned the case to today, 30 January 2013, for delivering judgment.  I allow the appeal, quash the conviction and set aside the sentence.  My judgment is set out below.

Background

2.  The appellant (the defendant at the trial) was charged with one count of controlling another person for purpose of prostitution, contrary to section 130(1)(b) of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong.  The case was heard before Deputy Magistrate Ho Wai-yang, who convicted the defendant on 11 April 2012 and sentenced him on 25 April 2012 to immediate imprisonment of 9 months.

3.  The appellant appealed against both conviction and sentence.

4.  Mr Tang, legal representative of the appellant, was also the solicitor who defended him at the trial.  After the appellant was sentenced, Mr Tang applied for bail for him.  The magistrate granted him bail pending appeal on the ground that by the time of the appeal hearing, he would have served the better part of his term of imprisonment.

Facts of the case and findings made by the magistrate

5.  Although the appellant pleaded not guilty, he admitted most of the prosecution case, and his admission was embodied in the Admitted Facts (exhibit P7) made pursuant to section 65C of the Criminal Procedure Ordinance, Cap. 221 of the Laws of Hong Kong.

6.  In the Statement of Findings the magistrate stated:

“7. The salient agreed facts are summarized below:

(1) The Appellant’s identity is admitted.

(2) PW1 is an undercover police woman. The operation was related to compensated dating.

(3) The operation required her to surf the internet. During the operation, she had used MSN to chat with people.

(4) On 15 July 2011, the Appellant called PW1. The conversation included the following matters:

(i) The Applicant said he needed to help his boss to find a long-term sexual partner.

(ii) For every transaction PW1 would receive $5,000.

(iii) Every transaction will last 3 hours and his boss will not use a condom. PW1 is expected to have sexual intercourse with the Appellant’s boss, provide oral sex, masturbation, and “play with toys”.

(iv) On festival occasions his boss will give PW1 lavish gifts such as LV or Gucci handbags.

(5) On 17 July 2011, PW1 received a call from the Appellant. The Appellant asked to meet PW1 on 19 July 2011 at 10.00 am at Central MTR Station, Exit F.

(6) On 19 July 2011 (Tuesday), PW1 met the Appellant at about 10.50 am. The Appellant and PW1 walked to No. 8 minibus stop. At the minibus stop, the Appellant said a number of things to PW1 including:

(i) In the future, she would have to take the No. 8 minibus to his boss’ house.

(ii) On the coming Saturday, PW1 would have to go to his boss’ house for the 1^st time to have sexual intercourse.

(iii) The Appellant will wait for PW1 at this minibus stop on the day and will take her to his boss’ home in Bik Lai Wan [transliteration of 碧麗灣].

(iv) PW1 would receive $5,000 for the transaction. If his boss was satisfied, he would give her $2,000 tips.

(v) The duration would be 3 hours, including sexual intercourse, oral sex and masturbation with stockings”.

(vi) The Appellant will not deduct a commission.

(7) On the same day, the Appellant was arrested.”

7.  The magistrate examined the video record of interview of the appellant and its transcript (exhibits P5a and P5b).  These exhibits were produced by agreement. There was no dispute over their voluntariness or accuracy.

8.  PW1 (WPC 8335) was a woman police constable disguised as a prostitute.  Her evidence was not challenged by the defence solicitor.  In her evidence in court she merely confirmed that she received a phone call from a man called Kenny on 15 July 2011.  According to the arrangement made in a telephone conversation, she was to meet Kenny at the Central Station of the MTR at 10.50 a.m. on 19 July 2011.  At about 10.50 a.m. on 19 July 2011, a man called Kenny identified himself to PW1.  This man called Kenny was the appellant.  Then they engaged in a conversation and in the end the appellant was arrested by PW1’s colleagues.

9.  The appellant elected not to give evidence, nor did he challenge the prosecution case.  He relied on the matters stated in the video record of interview and the post-record of interview.

10.  It is recorded in the post-record of interview that the appellant said under caution that he had not yet found a customer for PW1 and that he would not deduct money from her receipts as his commission.  He begged for a chance.

11.  In the video record of interview (exhibit P5a and transcript P5b) the appellant essentially gave the same account of what had happened, i.e. in fact he had not yet found a customer for PW1.  He also said that the arrangement for the meeting between he and PW1 on 19 July 2011 was made by PW1.

12.  The magistrate pointed out that the only issue in this case was whether the appellant did in fact exercise control, direction or influence over PW1.  She said:

“14. Defence Solicitor submitted that the Appellant had not exercised influence over PW1 by reason of the following matters:

(1) There was no actual customer involved. Discussions relating to any customers were reference to potential customers.

(2) The Appellant did not influence PW1.  At most it could only be said that the Appellant had encouraged PW1 to engage in prostitution.  PW1 was actively seeking customers herself.”

13.  The magistrate made the following findings:

“17. I considered the Appellant’s Video Record of Interview, post-record of Interview and Defence Solicitor’s submissions. Since I found the Video Record of Interview and post-record of Interview to be mixed statements, I gave myself the appropriate directions on assessing the inculpatory and the exculpatory parts of the statements; see R v Sharp [1988] WLR 7.

18. Having considered his Video Record of Interview and the post-record of Interview, I rejected the exculpatory parts of his statement and placed full weight on the inculpatory parts. In particular I rejected the Appellant’s allegation that he had not found a customer for PW1 at the time he was arrested. It is clear that this allegation is contrary to the Admitted Facts. In the Admitted Facts, the Appellant had already indicated the intended customer was his boss. He even told PW1 that the first appointment was on Saturday which was 4 days after the day they met on 19 July 2011. Moreover the Appellant was able to give details of the transactions including price, the expectations of the customer in terms of services to be provided and the location of the transaction.

19. I also did not accept the Appellant’s allegation in his Video Record of Interview that it was PW1 who arranged to meet him (Counter 32 and 283) on the day in question. This again is contrary to the Admitted Facts where it is agreed that the Appellant called PW1 and arranged to meet.

20. I therefore did not accept the exculpatory parts and placed full weight on the inculpatory parts. In particular I placed full weight on the following:

(1) The Appellant had chatted with PW1 and asked her if she was interested in prostitution, he would help her arrange. (Counters 30, 102, 285, 289)

(2) If the deal was successful, the Appellant would receive money from the customer directly. (Counters 42, 112, 126, 138, 219)

(3) The money received from the customer would be in cash. (Counter 221)

(4) The Appellant told PW1 that each deal would be about $5,000 – 6,000. (Counter 114)

(5) The Appellant had discussed possible locations of where the transaction would take place. If the customer required her to go to his place then she would have to go to his place. Otherwise it will be in a hotel. (Counter 120)

(6) The Appellant would arrange how much the customer would pay PW1. (Counter 136)

(7) As far as the Appellant knew, PW1 was 19 years old. (Counter 252, 267)

21. Although I rejected the exculpatory parts of the statement and placed full weight on the inculpatory parts, I must consider whether the Prosecution’s evidence on its own proved the charge against the Appellant beyond reasonable doubt.

22. I have considered the evidence and Defence Solicitor’s submissions. I have also considered the authorities submitted by Defence Solicitor.

23. The Defence Solicitor’s submissions relating to whether the Appellant had exercised control, direction or influence over PW1 is primarily based on the allegation that there was no actual customer at the time of the discussions with PW1 on 19 July 2011.

24. Having considered all the evidence, it is clear that the submissions of Defence Solicitor are misconceived as the underlying assumption of his submissions is clearly contrary to the facts agreed by him, on behalf of the Appellant, pursuant to section 65C Criminal Procedure Ordinance (Cap 221). Pursuant to the Admitted Facts, the Appellant clearly had found the potential customer, knew where the customer lived, knew the services demanded by the customer and knew the exact price the customer was willing to pay for the services. The Admitted Facts clearly show that the Appellant had already found a customer for PW1. I therefore did not accept Defence Solicitor’s submission that the Appellant was not exercising control, direction or influence over PW1.

25. Having regard to all the facts, I found that on 19 July 2011 the Appellant had already found and arranged a customer for PW1. He had arranged PW1 to provide sexual services to his boss on Saturday, which was supposed to be 4 days from the day of meeting. The Appellant had arranged for the price of the transaction, the location at which the transaction was to take place, the services to be provided to his boss, and the duration of the transaction. He had also intended to escort PW1 to the location on that day.

26. I also found that PW1 was required to provide sexual services including sexual intercourse, oral sex and masturbation to the Appellant’s boss.

27. Having considered all the evidence, I found that the Appellant had exercised control, direction or influence over PW1 for the purpose of or with a view to PW1’s prostitution.

28. I found the charge proved against the Appellant beyond reasonable doubt.  I convict him accordingly. ”

(emphasis added)

Grounds of appeal against conviction

14.  Mr. Tang, representing the appellant, briefly put forward two grounds of appeal:

(1) The effect of the appellant’s admission of the facts pursuant to section 65C of the Criminal Procedure Ordinance, Cap. 221 of the Laws of Hong Kong was that he admitted that he did say those things to the girl, i.e. the undercover woman police constable; but without admitting that the content of what he said was true.  The magistrate erred in finding that the appellant’s admitting those facts was equivalent to his admitting the truthfulness of the content of what he said, including what he said about his having found a customer for the girl.  Since he had not found any customer, it is not likely that he had committed the offence.

(2) In the circumstances of the present case, regardless of whether the appellant had already found a customer, he had not committed the offence.

1^st ground of appeal

15.  The content of exhibit P7, the Admitted Facts, was as follows:

“ Pursuant to section 65C of the Criminal Procedure Ordinance, Cap. 221 of the Laws of Hong Kong, the following facts are admitted by the prosecution and the defence:

1. The accuracy and the voluntariness of the content of what the defendant said under caution after he was put under arrest are not disputed.

2. The accuracy and the voluntariness of the content of the video recorded interview conducted under caution are not disputed.

3. The content of Annex 1, i.e. the summary of facts, is admitted.

4. The identity of the defendant is not disputed.”

16.  From paragraphs 18 and 24 of the Statement of Findings which I quoted above it can be seen that the magistrate rejected the exculpatory parts of the statement, i.e. the parts which said that the appellant had not yet found a customer, and placed full weight on the inculpatory parts, because the exculpatory parts contradicted the content of the summary of facts admitted by the appellant.  However, a close look at the content of exhibit P7, the Admitted Facts, clearly reveals that the things which the parties did not dispute are the accuracy and the voluntariness of the contents of (1) what the appellant said under caution after he was arrested, and (2) the video recorded interview conducted under caution. This indicated that the truthfulness of the contents of the two cautioned statements was not beyond dispute.  Any dispute between the parties was certainly related to the inculpatory parts and the exculpatory parts, and it was for the court to decide which parts were true and which parts were false. If this had not been the case, P7 would have been worded in a different way. The sentence “The content of … the summary of facts, is admitted” in P7 should not be taken to mean that the truthfulness of the summary of facts was admitted; otherwise the truthfulness of the content of the two cautioned statements should not have been subjected to any dispute.

17.  The magistrate rejected the exculpatory parts for the reason that the exculpatory parts contradicted the content of the summary of facts admitted by the appellant; she was wrong.

18.  Ms Ng, Senior Public Prosecutor, representing the respondent, referred the court to section 65C of the Criminal Procedure Ordinance, Cap. 221 of the Laws of Hong Kong, which provides that:

“(1) Subject to the provisions of this section, any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceedings by or on behalf of the prosecutor or defendant and the admission by any party of any such fact under this section shall as against that party be conclusive evidence in those proceedings of the fact admitted.” (emphasis added)

19.  Ms. Ng submitted that according to the facts admitted by the appellant, at a very early stage he had already reached an agreement with PW1 over the phone as to the sexual services wanted by his “boss”.  Subsequently, he, on his own initiative, telephoned PW1 and asked her to meet him for discussion at exit F of the Central Station of the MTR.  On the day of the offence (19 July 2011) PW1 went to meet him at the appointed time.  When they met, the appellant was able to give her clear instructions about the various arrangements concerning the provision of sexual services to his “boss”.  It is true that the appellant denied under caution that he had already found a customer for PW1, but when the statement he made under caution was inconsistent with the conclusive evidence, Ms Ng said, the magistrate was entitled to give no weight to his exculpatory remarks.

20.  Ms. Ng argued that it was open to the magistrate to draw from the conclusive evidence the only inference that the appellant had already found a customer for PW1.

21.  In my view, Ms Ng has mixed up two different concepts.  That the magistrate could draw from the conclusive evidence an inference which was the only inference is beyond doubt.  However, what the conclusive evidence in the present case consists of must be made clear.  What the appellant admitted was that he had said those things to PW1, but he did not admit that what he said was true.  The magistrate could certainly make her finding as to whether what the appellant said to PW1 was true, but it does not follow that she could reject the exculpatory parts of his statement simply because the content of P7 which he admitted was inconsistent with the exculpatory parts of his statement.

2^nd ground of appeal

22.  I am not sure whether the magistrate would have accepted the exculpatory parts of the appellant’s statement if she had not committed the above-mentioned error. In any event, I consider that the facts of this case are insufficient to support the conviction of the appellant for the offence.  This is a question of law.  My explanation is provided below.

23.  The appellant was charged with committing the offence under section 130(1)(b) of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong.  This provision provides that:

(1)  任何人 —

 (a)   …

 (b)  窩藏、控制、指示或影響另一人，目的在於或旨在使該人賣淫，

即屬犯罪，一經循公訴程序定罪，可處監禁14年。

24.  I shall set out the English version as well, so that comparison can be made:

(1) A person who —

(a) ...

(b) harbours another person or exercises control, direction or influence over another person for the purpose of or with a view to that person’s prostitution,

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

25.  In the Statement of Findings the magistrate did not deal with the interpretation of this provision.

26.  Both parties referred me to Sin Kam Wah & Anor v HKSAR [2005] 8 HKCFAR 192.  In that case the Court of Final Appeal made the following observations regarding the words “control, direction or influence”, see page 213J-214B of the judgment:

“55. The words “control, direction or influence” in this subsection 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 person concerned is in furtherance or by way of assistance of their present or future activities as prostitutes.”

27.  The Court of Final Appeal dismissed the appeal against convictions lodged by the 2^nd appellant of that case.  She committed offences which, like the offence involved in the present case, contravened section 130(1)(b).  In that case the conduct of the 2^nd appellant was as follows:

“56. Although it may be that the trial judge’s reference to the second appellant as a ‘manager’ of the clubs was not entirely accurate, she 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)

28.  In Fong Yuk Choi’s case, which the Court of Final Appeal referred to, the Court of Appeal stated that the appellants set up a brothel.  The first and the second floors of the building involved in the case were rented property and were used as the brothel.  The fourth floor was self-owned property and was dormitory for the prostitutes, which was linked to other places by a secret passage.  The prostitutes were recruited in Thailand and they willingly came to Hong Kong to be sex workers.  The appellants brought in customers, who paid money to them.  Although there was nothing which suggested any coercion, the Court of Appeal held that there was sufficient evidence to support the convictions for contravening section 130(1)(b).

29.  The facts of both Sin Kam Wah and Fong Yuk Choi were more serious than those of the present case.  Just by comparing the facts of these three cases, it is hard to say the appellant of the present case committed the offence under section 130(1)(b).

30.  In R v Poon Ping-kwok & Anor [1993] HKCU 0565 the Court of Appeal dealt with a case about two police officers who made arrangements for the provision of sexual service to a jockey by a foreign prostitute. The issue was whether they had committed the offence under section 130(1)(b). Vice President Sir Derek Cons had this to say in the judgment:

“Meanwhile, on the afternoon of the 16^th, the jockey had been treated in the same way as he had on the afternoon of the 13^th, save that on this occasion it was a Miss Tracey Lambie, one of the British girls, who was provided for his amusement. Lo had made the arrangement earlier that day with one Lee Tsang-kan, a triad associate, who was the person responsible for bringing the girls to Hong Kong. Again the San Diego Hotel was used and again the 1^st defendant, 2^nd defendant and Lo were present downstairs throughout, presumably to emphasize to the jockey the true provenance of the favours he was receiving. Protestations of mere curiosity, as the judge below held, are just not credible. From this incident arose the 2^nd charge, albeit it was no. 3 on the charge sheet, that the two defendants, together with Lo and others, exercised control, direction or influence over Miss Lambie for the purpose of her prostitution, contrary to s. 130(1)(a) of the Crimes Ordinance.

It is common ground that although there may often be occasions when the customer of a prostitute may be said to exercise control, direction or influence over her, as for example when he tells where to meet him, the section is not intended to cover conduct of that kind. Something more is required, although we feel it would be undesirable, if not impossible, to attempt a precise definition of its nature. In R. v. Woo Shu-Wai Mag App No. 845 of 1987 unreported, Addison, J., referring to the presumption in s. 137 of the Ordinance where similar words are used, said this:

‘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 of the legislation itself.’

A similar line was taken in England in R. v. O. [1983] Crim LR 401 where it was suggested that there was a need for something in the way of persuasion or compulsion; mere encouragement was not enough.

The judge below was satisfied that in this instance there was joint responsibility. He said:

‘The conversations both before and after the intercourse session, the directions that were given to the prostitute from the table where he was seated, and the agreement that he knew exactly what was going on, all make it perfectly clear that the 1^st defendant with the others (the 2^nd defendant and Lo etc.) were exercising influence and direction over the prostitute in the San Diego Hotel that afternoon.’

With every respect to him, although there is room for ample speculation as to exactly how far the 1^st and 2^nd defendants were involved, on the evidence that was actually before the judge no reasonable tribunal could, in our view, be sure that as regards Miss Lambie the two defendants did anything which took them beyond the role of mere customers, albeit the services they thus engaged were for the benefit of a third party. The control within the section was clearly in Lee Tsang Kan, who had recruited the girls in England, transported them to Hong Kong and here made arrangements for their accommodation and employment. The conduct of the defendants throughout showed a cynical disregard for their responsibilities as police officers, but it did not extend to the control, direction or influence of a prostitute within the section. …” (emphasis added)

31.  The gist is that a man surnamed Lee with triad background arranged for a number of young girls to come to Hong Kong to engage in prostitution.  He recruited them in England, had them transported to Hong Kong, and when they were here he arranged for their accommodation and for them to entertain customers.  The Court of Appeal considered that this man had contravened section 130(1)(b).  The two police officers involved in that case made arrangements for one of these imported prostitutes to provide sexual service to the jockey.  The jockey and the prostitute were upstairs in a room in the hotel, while the two police officers stayed downstairs in the hotel throughout, with the sole purpose of letting the jockey know that the prostitute was provided by them.  The Court of Appeal found that it was impossible to be sure that the two police officers had done anything in excess of what they, as customers, could have done, even though the service they wanted from the prostitute was that she should entertain a third party.

32.  The Court of Appeal further pointed out it was common ground that although a customer might often be said to have exercised control, direction or influence over a prostitute because he told the prostitute where to meet him, the provision was not intended to cover such conduct.

33.  The opinion of Addison J expressed in Woo Shu-Wai and relied on by the Court of Appeal is that the three words in 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.  It was also suggested in the English case R v O that mere encouragement was not enough and that some persuasion or compulsion was necessary.

34.  Perusing the facts of Sin Kam Wah and Fong Yuk Choi carefully, one will see that all the appellants who were convicted of the offence under section 130(1)(b) occupied a position of authority in relation to the girls who engaged in prostitution and exercised considerable control over them.  At the very least, the appellants were people who had the power to influence them.  In the above-mentioned authorities, the court said that these three words “control, direction or influence” should be given their ordinary meaning.  This is undoubtedly true.  Actually, the English version of section 130(1)(b) uses the word “exercise” with respect to “control, direction or influence”. This wording lacks fluency in terms of Chinese syntax.  If the character “權 or 力” [Both characters mean “power”] is added to the Chinese version at the end, then it seems that the Chinese version will be closer to the meaning of the English version.  Otherwise, the characters 影響[influence] import too wide a meaning: Anyone who makes any suggestion to a stranger about engaging himself or herself in prostitution commits the offence under section 130(1)(b), because the act of making a suggestion to someone will 影響[influence] that someone.

35.  Mr Tang submitted that the core issue of the present case is under the circumstances where between the appellant and PW1 there had never been any superior-subordinate relationship, employer-employee relationship or kinship——  they were not even friends (it was the first time they had ever met each other) —— even assuming that the appellant had really found a would-be customer, whether the appellant’s acts and words on the day of the offence were sufficient to constitute exercising control, direction or influence over PW1 for her prostitution.  Mr Tang argued that what the appellant did and said to PW1 on that day only amounted to instigating or encouraging her to be a prostitute, but not sufficient to constitute exercising control, direction or influence over her.

36.  Ms Ng submitted that even assuming that the appellant had not yet found a customer for PW1 (the respondent did not agree with this point), he had already reached an agreement with PW1 as to the terms and conditions about the provision of sexual services by PW1.  He clearly had exercised influence over PW1 for the purpose of or with a view to her prostitution.  In addition, the magistrate found that he did find a customer for PW1, and this gave further support to the element of “exercises control, direction or influence”.  The respondent opined that the appellant’s conviction met the legal requirements and had a sound evidential basis.

37.  In paragraph 34 I have explained the scope of “influence”.  My interpretation is more restrictive than the meaning given to it by Ms Ng.  On the basis of the interpretations given by the courts in the authorities mentioned above, I find that Mr. Tang’s submission is correct.  However, a decision should not be made simply by referring to the relationship between the parties concerned, but should be made by examining the particular facts of each individual case.

38.  In paragraph 25 of the Statement of Findings, the magistrate made the following findings of fact:

“… I found that on 19 July 2011 the Appellant had already found and arranged a customer for PW1. He had arranged PW1 to provide sexual services to his boss on Saturday, which was supposed to be 4 days from the day of meeting. The Appellant had arranged for the price of the transaction, the location at which the transaction was to take place, the services to be provided to his boss, and the duration of the transaction. He had also intended to escort PW1 to the location on that day.”

39.  All these were just arrangements made by the appellant for inducing PW1 to be a prostitute.  He was arrested before the Saturday which he mentioned had come. It could not be sure whether the arrangements which he had agreed to make would be made fully or partially, therefore it could not be presumed that everything did happen as arranged.  In my judgment, under these circumstances, it could not be sure that there was sufficient evidence to prove that the appellant did exercise control, direction or influence over PW1 for her prostitution.

Conclusion

40.  For the above reasons, I allow the appeal, quash the conviction and set aside the sentence.

41.  The facts which the applicant admitted may constitute an offence under another provision in the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong.  I therefore remit the case to the magistracy for it to be heard by another magistrate.  The appellant shall continue to be on bail pending trial.

42.  I also order that the costs of this appeal (not including the costs of the trial) be awarded to the appellant, to be taxed by the registrar if not agreed.