R v HO SHUI WAH

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 52 OF 1994

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J U D G M E N T

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1. On 13th December 1993 at North Kowloon Magistrates' Court, the Appellant was convicted, after pleading not guilty, of two charges. The first was procuring a girl under the age of 21 to have unlawful sexual intercourse contrary to section 132(1) of the Crimes Ordinance (Cap. 200) ("the Ordinance"), and the second was living on the earnings of prostitution contrary to section 137(1) of the Ordinance. He was sentenced to 15 months' imprisonment and fined $1,000 on the first charge, and sentenced to 9 months' imprisonment consecutive on the second charge, making 2 years' imprisonment in all. He now appeals against his convictions and sentence.

2. The girl to whom the first charge related was PW1. She was 15 at the time of the alleged offence. The Appellant could not have been convicted on the first charge, unless PW1's evidence that the Appellant had procured her to have unlawful sexual intercourse was corroborated in some material particular see section 132(2) of the Ordinance. Moreover, although her evidence was that the Appellant had asked her to become a prostitute, the decision to become a prostitute was entirely hers, and the Appellant had put no pressure on her at all to become one. In R. v. Young Lin [1989] 1 HKLR 303, Barnes J. held, after reviewing a number of authorities, that a prostitute in these circumstances should be treated in law as an accomplice of a man charged with on offence under section 137(1) of the Ordinance, and a magistrate trying a man charged with such an offence should, therefore, not convict him without first having warned himself of the danger of relying on the uncorroborated evidence of the prostitute.

3. The magistrate's notes of the proceedings before him show that neither the police officer who was prosecuting nor the Appellant's counsel addressed the magistrate in connection with the need for corroboration on the first charge or the desirability for corroboration on the second. Moreover, the magistrate's note of the reasons he gave when he convicted the Appellant on the two charges does not indicate that the magistrate considered the question of corroboration at all. In his Statement of Findings which bears a date 10 days after the hearing, the magistrate expressly referred to the need for corroboration on the first charge. He did not refer to the desirability of corroboration on the second charge, but he set out various admissions in the written record of the Appellant's interview by a police officer which the magistrate regarded as corroboration on both charges.

4. In these circumstances, the critical question is whether the magistrate considered the question of corroboration at the time he convicted the Appellant on the two charges, or whether the findings relating to corroboration in his Statement of Findings were ex post facto. If they were ex post facto, the convictions cannot stand because it would mean that in convicting the Appellant on the two charges the magistrate had failed to address at the time a critical question relating to the Appellant's guilt or innocence which the law required him to address.

5. Hooper J. was confronted with a similar problem in R. v. Wong Shing-fai [1991] 1 HKLR 372. At p.376 A-C, Hooper J. said:

"Leaving the statement of findings aside for the moment, I do not think it would be right for an appellate court to assume that the magistrate has given himself these directions in the absence of specific reference to either of them. They are matters of extreme importance in a criminal trial, and it should be made abundantly clear from the record that the magistrate did so warn himself. When the magistrate in his statement of findings states that he did give himself the appropriate warnings, it is, of course, open to the appellate court to accept what the magistrate has said in this respect, unless there is reason to believe from the record that the statement of findings may not be accurate in that respect."

I agree with those observations. However, when I look at the language which the magistrate used in his Statement of Findings, I do not think that the magistrate even purports to have addressed the question of corroboration at the time of conviction. He described his conclusion as to PW1's evidence as follows:

"I was satisfied beyond reasonable doubt that her evidence was true and accurate."

The tense he used shows that he was talking about what he had been satisfied about at the time of conviction. However, when he came to corroboration in his Statement of Findings, the magistrate used the present tense to describe (a) what section 132(2) of the Ordinance required, and (b) more significantly, what constituted corroboration. The difference between the language he used there, and the language he used in the earlier passage to which I have referred, is stark.

6. Since the magistrate did not purport to have addressed the question of corroboration at the time of conviction, the outcome of the Appellant's appeal against conviction is in my judgment inevitable. This appeal will be allowed, and his convictions will be set aside. However, the seriousness of the offences, and the nature of the evidence against the Appellant, make it appropriate, in my view, for the Appellant to be retried, and I direct that he be retried on the two charges before a different magistrate. In reaching that conclusion, I have made no assessment as to whether the sentences imposed by the magistrate on him were excessive, though I have taken account of the fact that even if the Appellant would have earned full remission on his current sentences, he has not yet served half the time that he would have been in custody for.