HKSAR v. MO Wan-lung

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 621 OF 1997

_________________

_________________

_________________

J U D G M E N T

_________________

1. The Appellant was found guilty after trial on one count of living on the earnings of prostitution contrary to section 137(1) of the Crimes Ordinance and were sentenced to a term of three years' imprisonment. This is his appeal against both conviction and sentence.

2. There are three grounds of appeal advanced by counsel. The first is the learned magistrate made no finding at all that the defendant had wholly or partly lived on the earnings of prostitution. The second ground was the learned magistrate failed to deal with or resolve the apparent inconsistencies and contradictions on the evidence of PW1, who was the alleged victim of this case. The third ground was the learned magistrate relied exclusively on the demeanour of the prosecution witness, PW1.

3. In his 18-page Statement of Findings and Reasons for Sentence, the learned magistrate made a detailed recitation of the evidence before him. The basis upon which the conviction was founded was that he accepted the evidence of PW1. I note from the evidence of PW1 that she referred to her earnings from prostitution were handed over as donations for a religious sect. She had no reason to doubt that at the time.

4. This was the prosecution's case and if the learned magistrate accepted the evidence of PW1 as he did he must also have accepted PW1's evidence that they were donations. It must have been incumbent upon him to make a specific finding as to the nature of those moneys being handed over as this was an essential element or ingredient of the offence. However, in the Statement of Findings, there were no such reference or findings as such.

5. Miss CHAN, for the prosecution, submitted that the evidence was so overwhelming from PW1 that, in his mental process, the learned magistrate must have come to that conclusion; although there was no express findings in the Statement. With respect to Miss CHAN, the evidence was not overwhelming. The learned magistrate criticised the evidence of PW1 as being evasive. She was inconsistent in certain aspects of her testimony and there was a general tendency of her to exaggerate her description of the events. Having identified the weaknesses in her evidence, the learned magistrate, however, did not proceed to resolve the problems he spotted.

6. What he went on to say at page 15 of his Statement of Findings was:

"Having considered all these matters I found that PW1 was a reliable and credible witness and I accepted her evidence that the defendant had persuaded by the defendant to act as a prostitute and pay the proceeds to the defendant. I was prepared to accept her evidence despite the lack of corroboration."

7. He repeated himself at page 16 by saying:

"Having accepted that PW1 was a reliable and credible witness I was satisfied so that I was sure that the defendant had persuaded PW1 to work as a prostitute and paid her earnings therefrom to the defendant and I accordingly convicted him of the offence."

8. He never indicated in the Statement of Findings as to how he dealt with the problems with the weaknesses of PW1's evidence. This is perhaps an oversight and it is most unfortunate.

9. In the circumstances the conviction must be unsafe and unsatisfactory. The appeal is allowed, the appellant's conviction is quashed and the sentence is set aside.