THE QUEEN v. LEUNG YUN

IN THE HIGH COURT OF HONG KONG

APPELLATE JURISDICTION

Magistracy Appeal No. 729 of 1988

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J U D G M E N T

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1. The Appellant pleaded not guilty to three charges of living on the earnings of a prostitute contrary to s. 137 of the Crimes Ordinance. The charges covered three periods : the first between May and June 1987 in relation to a girl X; the second between June and July 1987; and the third July and August 1987 both in relation to a girl Y. The first two charges alleged that the offences occurred at Flat C, No. 311 Nathan Road, 2nd floor, whilst the third allegedly occurred at No. 37N Jordan Road, Mezzanine floor.

2. The two girls were the principal prosecution witnesses. X was 141/2 and Y 15 at the time they gave evidence in May 1988 which meant that X was under 14 and Y around about 14 years of age at the. time of the alleged offences.

3. X's evidence was that on her own initiative she went to meet the Appellant on the introduction of a friend in April or May 1987 so that he could introduce customers to her for the purposes of prostitution. She knew him as Ah Leung and met him at premises bearing a signboard saying Cheung Kong Trading Co on the 2nd floor of an address in Jordan Road. As a result of that introduction she went to the premises during May and June on six or seven occasions. She was prompted to go on each occasion except the first because the Appellant had contacted her to let her know that there was a customer on the premises wanting a prostitute. On arrival she would meet the Appellant who would introduce her to a customer. She would then take the customer to one of a number of rooms on the premises and have sexual intercourse with him. The customer on each occasion paid the Appellant who then gave her $200.

4. In cross-examination she said that she became a prostitute without pressure from anyone and that she was not subjected to any control. She agreed that when a confrontation between her and the Appellant was arranged at a police station on 27th November 1987 in the presence of her monther, the Appellant, his lawyer and some police officers she said, when asked if she could identify anyone then present, that she could not. She went on to say that at the time, although she did recognise the Appellant, she was so scared that she dare not speak.

5. Y's evidence was that in about June 1987 she sought an introduction to the Appellant for the purposes of prostitution. She was taken by a friend to premises known as Cheung Kong Trading Co, on the 2nd or 3rd floor of a building in Jordan Road where she met the Appellant. Thereafter she went to see him on six or seven occasions on most of which she went because she had earlier telephoned him and discovered that he had a customer for her. On each occasion she acted as a prostitute and was paid $200 by the Appellant after the customer had paid him. At some stage during the period she was visiting him he changed premises. The later acts of prostitution occurred on premises bearing a signboard saying 'Kam Kuk Yuen' situated in another building near the Jordan Road ferry pier. During the police investigation she took some officers to the Cheung Kong Trading Co premises.

6. In cross-examination she agreed that she had not been forced by anyone to act as a prostitute. She also agreed that at a confrontation with the Appellant at a police station in November 1987 she said that she could not pick out anyone she recognised. She said that she did recognise the Appellant and that her reason for saying that she did not was that she was afraid of revenge and dared not reveal her fear to the police until she was out of the presence of the Appellant.

7. A police officer gave evidence to the effect that the address of the Cheung Kong. Trading Co premises to which y took the police party was Flat C, 2F, 311-313 Nathan Road.

8. The principal tenant of those premises gave evidence that he had let them to the Appellant from 1 February 1987 for two years but that the Appellant in fact vacated them in July 1987.

9. During his cross-examination the Defence produced a document which the witness agreed was the written evidence of their letting agreement. "He said that the Appellant prepared it but that he and the Appellant signed it in the presence of each others. It was then put but denied by the witness that the document was forged by him. He also denied the defence allegation that the Appellant had never signed the document.

10. Another police officer gave evidence of having gone to the Cheung Kong Trading Co premises in March 1987 to execute a warrant. A man answered the doorbell ring. The officer revealed his police identity and said he had to enter the premises to execute the warrant. The man closed the door but then opened it again four minutes later in response to continued ringing of the door bell. When asked why he failed to let the police enter he said he was not sure they were police and dared not open the door. In response to a question from the officer the man said that he was the person responsible for the premises The officer said that he was no longer able to identify that man.

11. The Appellant gave evidence. He said that from March to June 1987 he was working at the Cheung Kong Trading Co premises under contract with the principal tenant witness doing decoration work. He said he opened the door for the police officer who came in March to execute a warrant but he told the police officer that he was not the person in charge. He said that when arrested he told the police that the premises had not been let to him, he had never rented them, had not signed any tenancy agreement in relation to them, he did not know the girls and had never been at the address mentioned in the third charge.

12. He called as a witness a document examiner of 37 years' experience in handwriting comparison and identification. The witness said that in his opinion the signature on the tenancy agreement purporting to be that of the Appellant was not his.

13. The learned magistrate convicted him on the three charges and he now appeals. His grounds are based on "the dock identification" of him by the two girls and the learned magistrate's failure to threat them as witnesses requiring corroboration because they were witnesses of tender age and/or accomplices.

14. Ground 1 alleges that the magistrate erred in allowing "a first time identification", whilst ground 2 contends that if he was right in allowing such an identification he was wrong in attributing any weight to that identification.

15. On the girls' evidence this was not a first time dock identification. They said they recognised him at the confrontations. On their evidence theirs was not a failure to recognise but a refusal, though fear, to say in his presence that he was the man.

16. The objection to first time dock identifications is its poor quality as identification evidence. The objection recognises the natural inclination of a witness asked to make such an identification to think that there must be a good reason for the person's presence in the dock and thus be prompted to identify on the basis of that belief that he must be the person rather identify or refuse to identify according to the witness' own independent recollection of the offender's identifying features. That danger did not exist here. If the girls were telling the truth they were prostitutes pointing out their pimp, a man they knew both by appearance and by name, a man each had "identified" on six or seven previous occasions before any of the confrontations. Although the Appellant's case was that he was falsely accused so that identity was in issue this was not a case where the only evidence led to resolve that issue was the dock identification. I find no merit in this ground.

17. As to ground 2: the learned magistrate's findings make no reference to the dock identifications, no doubt because in this case those identifications were regarded by all who witnessed them as the mere formal identification by girl X of the person she meant when she referred to Ah Leung and by girl Y of the person she meant when she referred to Cheung Yun. What the learned magistrate does refer to is other evidence which he accepted. and which led him to conclude that the Appellant was the tenant of the premises at 311 Nathan Road. From that he concluded that the Appellant was the person who paid each girl $200 for each act of prostitution at those premises. Having accepted Y's evidence and rejected the Appellant's he had a sound basis for finding that it was the Appellant who paid Y $200 for each act of prostitution at the premises mentioned in the third charge. I find no substance in ground 2.

18. Ground 3 contends that corroboration was necessary because the girls were of tender age but I do not see how it could be held that either of the girls was so immature as to fall within that category, having regard to their ages and their "professional experience" at the time of trial. There was no need for the corroboration warning on the basis of "tender age".

19. In advancing ground 4, which contended that the corroboration warning was required because the girls were accomplices, Mr. Grounds faced the hurdle that all the textbooks on evidence and, Halsbury unequivocally declare that the prostitute who provides the earnings on which a man is alleged to have been living is not an accomplice in the commission of his offence. In support of that proposition all rely on King ((1914) 10 Cr. App. R. 117).

20. Mr Grounds' submission is that King does not establish that the. prostitute can never be an accomplice and that when King is read with Pickford ((1914) 10 Cr. App. R. 269) the principle properly stated is that a coerced prostitute is not a pimp's accomplice. King was decided in April and Pickford in July 1914. Both Lord Reading L.C.J., and Avory J. were parties to each decision with Lord Reading delivering the judgment of the court on each occasion. In each case the appellant had been convicted on a charge of living on the earnings of a prostitute and in each the argument was that the prostitute was an accomplice in the offence charged. In King Lord Reading, after referring to, that argument, said this :-

"It is sufficient to say that there is no evidence of this and it is not necessarily the case.The only way in which it is possible to argue the case is to say that in doing some of the acts, which she must have done to carry out the intention of the appellant, she must have been guilty of soliciting or of some other offence. It is impossible to say that she is therefore an accomplice in the crime with which the appellant was charged."

21. In Pickford no reference was made to the then recently decided King even though two members of the Court which delivered the judgment in King sat on the appeal in Pickford. Addressing the same argument again Lord Reading said this.:-

"As to corroboration it has never been laid down that it is necessary to have corroboration in a case of this kind; it is not essential. There may be cases where it is plain that the woman was an accomplice, and where what has been called a rule of prudence and discretion should be followed and the jury warned by the judge. But there are other cases where it is by no means clear that the woman was an accomplice; she may have acted under compulsion."

22. Cur Court of Appeal has recently examined what Lord Reading actually said, to find the ratio decidendi for holding that a prostitute is not necessarily an accomplice in such cases (R. FONG Yuk-choi Crim. App. 819/83)

23. In Fong the appellant was charged with exercising control over a woman for the purposes of prostitution. The Court was referred to King but not to Pickford. For present purposes that does not matter. Silke J A. (as he then was), delivering the judgment of the Court, referred to the remarks of Lord Reading in King quoted above and then said -

"So here the argument would have to be that in engaging in prostitution the girls were aiding and abetting the exercise by the applicants of control, direction or influence over them for the purpose of that very prostitution That they willingly accepted the assistance of the applicants which provided them with the opportunity to carry on their profession is undoubted. But in our view it does not make them accomplices in the sense of participes criminis.-"

24. Fong does not say that a prostitute cannot be an accomplice but that proof of willing indulgence by a prostitute in acts of prostitution does not per se amount to proof of accessoryship in respect of an offence of exercising control, direction or influence over her. For that offence there is the difficulty in visualizing conduct on the part of the prostitute amounting to the instigating, encoraging or assisting another to exercise control, direction or influence over herself. Consequently, in that type of case the concept of accessoryship is elusive.That is probably the reason for the absence of any accomplice argument by the appellant in R v Hanton (The Times, 14.2.85), a case to which I was referred by Mr Wong for the Respondent. The appellant in that case sought to argue the need for the corroboration warning on the basis that the case was analogous to the "sexual cases" in which the warning is required. The Court of Appeal rejected that argument. Hanton was, like Fong, an "exercise of control" cases. It is easy, however, to visualize conduct by a prostitute which does constitute the instigating, encouraging or assisting of a man by a prostitute with the intention that he should commit the offence of living off her earnings. I think that that is why Lord Reading said in King that a prostitute is not necessarily an accomplice and in Pickford that there may be cases "where: it is plain that the woman was an accomplice" Proof of apparently willing acts of prostitution is not enought to support a finding that the woman was an acessory because there may-have been compulsion to gain her agreement to behave in that way. Where, however, she volunteers to behave in that way with the intent on of persuading, encouraging, or assisting the man to live off her earnings there is no basis in principle or policy for holding that she is not an accomplice

25. Mr Wong referred me to Sections 130, 131, 132 and 133 of the Ordinance all contained in the same Part as s.137. In each, but not in s. 137, there is a subsection providing as follows :-

"A person shall not be convicted of an offence under this section on the evidence of one witness only, unless the witness is corroborated in some material particular by evidence implicating the accused."

26. Mr Wong's submission is that the absence of such a provision from s.137 indicates a legislative intent that corroboration is not a requirement in proof of a s137 offence. Although the legislature has shown that corroboration of the kind required of proof of offences under the other sections is not required, in respect of a s 137 offence, the corroboration required for proof of those other offences is corroboration of a witness whether that witness is an accomplice or not. It is an extension of the corroboration rule with which we are concerned here. The omission of the provision from s 137 simply means that corroboration of a non-accomplice witness is not required in proving a s 137 offence. The failure to apply the extended requirement regarding corroboration to s 137 offences does not imply the abolition of the narrower rule already applicable.

27. In this case as the girls did volunteer, with one or other of the intentions I mentioned earlier, they should have been treated as accomplices and the warning given. For an understandable reason - namely, if Halsbury and the textbooks on evidence say that the girls are not accomplices in such cases why should a magistrates court hold otherwise? - no warning was given. As acomplices, the girls could not mutually corroborate so there was no evidence capable of affording corroboration of the allegation that the Appellant lived off their earnings as prostitutes. Again, understandably, there was no indication from the learned magistrate's Statement of Findings that he would have convicted after having warned himself of the danger of doing so in the absence of corroboration.

The appeals must therefore succeed.