HKSAR v. CHEUNG KING KING

HCMA352/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.352 OF 2002

(ON APPEAL FROM TMCC 220 OF 2002)

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

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

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

J U D G M E N T

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

1. This is an appeal against conviction only.

2. The appellant who appears in person before me was convicted of an offence of living on the earnings of prostitution, contrary to section 137(1) of the Crimes Ordinance, Cap. 200.

3. Her general ground of appeal is that her conviction was against the weight of the evidence. She also complains that the Duty Lawyer Scheme, which provided the lawyer who represented her during the course of the magistracy trial, did not allow her to change that lawyer during the trial as she wished.

4. The facts of the case as found by the magistrate were that the appellant was the head tenant of a number of rooms in the building in which she lived. On the charged occasion, PW1, an undercover police officer, had met the appellant outside a restaurant after ringing a particular phone number for the purposes of arranging the services of a prostitute. The appellant and he, when they met, then had a conversation about the obtaining of such services. The appellant asked PW1 to follow her. He was led to a room to which the appellant eventually brought a girl. The appellant then collected money from PW1. That money unbeknown to the appellant was marked. The money was subsequently found in the appellant's handbag when she was arrested by other police officers at a later stage when she was returning to the room where she had left PW1 and the girl.

5. The appellant's case which was rejected by the magistrate was that she had coincidentally met PW1 outside her building and he asked her if a particular female was at home. This female was known to the appellant. The officer followed her into the building, met the female, and he and that female went off to another room in the building which was rented by the appellant to that female. The appellant went with them to collect some of her own property which was still in the room. As they went into the room, that other female gave her HK$300 dollars for rental monies which the appellant subsequently put in her handbag. The appellant then collected her belongings and left the room. Later, she decided to go back to the room to get medicine for her dog. She had a key to the door and let herself in. It was at that point she was arrested by other officers.

6. The magistrate rejected the appellant's evidence. He found it implausible. He was perfectly entitled to do so. It was based fundamentally upon a series of timely and unbelievable coincidences. The magistrate also rejected the evidence of the other female, a Mainland prostitute, given in the same terms as that of the appellant. The magistrate described the latter's evidence, additionally, as being given "as if she was reading a script". He was entitled to regard her evidence in that light. He was in the best position to make such an assessment.

7. The magistrate accepted PW1's evidence. He was entitled to do so. It was detailed and cohesive. It was supported in some of its aspects by other evidence presented during the course of the trial. If PW1's evidence had been fabricated as the appellant alleges, it was done so in considerable detail and in a way which gave it the ring of truth. No reason for any such fabrication was advanced before the magistrate or before me by the appellant.

8. In short, the magistrate was entitled to arrive at the findings of fact he made based on the evidence before him. His approach to the evidence was proper. The appellant was unable to effectively criticize the magistrate's approach to the evidence in any substantive sense before me. The magistrate's findings of fact established the offence. That disposes of the appellant's general ground of appeal.

9. She raises another complaint. That is that she attempted to change her lawyer during the trial but was told by the Duty Lawyer Scheme that no other lawyer was available. She felt her lawyer was not generally doing a good enough job and that particularly he had misled her by getting her to agree to something she did not understand. The only matter the appellant agreed to during the trial were admitted facts. Those facts were purely formal in nature. I am sure that her lawyer had received proper instructions in this regard. What the appellant may had been confused about was the magistrate asking her directly whether she agreed to those facts. There is nothing in this aspect of her complaint.

10. So far as her not being able to change her lawyer is concerned, the Duty Lawyer Scheme is not there to provide a lawyer of choice. It provides competent and qualified lawyers for persons who would otherwise be unrepresented. No doubt the scheme is administered with as much flexibility as possible, but defendants do not and cannot have a right to be represented by a lawyer of their choice under that scheme. If a defendant is dissatisfied with a duty lawyer's representation then their only alternative rights are either to retain a lawyer privately or to appear in person. The appellant in the present case chose to continue with her existing lawyer. From what can be seen from the transcript before me, he represented her capably and competently.

11. There is nothing in the appellant's ground of appeal or complaints and the appeal against conviction is dismissed.