THE QUEEN v. TAM KWOK-YEUNG AND OTHERS

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 926 OF 1988

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REASONS FOR JUDGMENT

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1. On the 12th August 1988 the 1st Appellant who was the 1st Defendant in the Court below was convicted of managing a vice establishment while the 2nd, 3rd and 4th Appellants who were the 2nd, 3rd and 4th Defendants in the Court below were convicted of assisting in the management of a vice establishment. They all appealled against their convictions and I allowed the appeal and set aside the convictions and indicated that I would give reasons later. I now do so.

2. The rosecution had sought to prove that the premisesconcerned came within the term "vice establishnent" in Section 139(b) of the Crimes Ordinance e Cap. 200 of the Laws of HongKong. It was therefore incumbent on the prosecution to establish that more than one woman had behaved in the premises in a lewd manner. It was also incumbent on the prosecution to establish, once the premises had been proved to be a vice establishment, that the Appellants were carrying out the roles attributed to them in their respective charges.

3. Mr Sanguinetti who appeared for the Appellants on the appeal argued that the evidence before the Court was not sufficient to establish either.

4. The only evidence to the effect that the 1st Appellant was managing the establishment concerned came in the form of an admission. The witness who testified as to this admission was Inspector Baker. The was that the conversation between Inspector Baker and the persons at the premises was conducted through the interpretation of a sergeant. However, the sergeant was not called to give evidence. It was therefore quite clear on the authorities of LI Kin-wai v. R. MA 102 of 1985 and R. v. Attard [1958] 43 C.A R. 90 that the evidence of the inspector as to what was said to him was hearsay and inadmissiblein evidence. There being no other evidence as to the role played by the 1st Appellant,I had no alternative but to allow the appeal in respect, of him and set aside the conviction.

5. So far as the other Appellants are concerned, it was clear on a reading of the record that there was uncertainty as to the identity of the alleged second woman who had performed lewd acts with the 2nd prosecution witness. At one stage PW2 stated that the woman was somebody other than the 2nd Defendant, because the 2nd. Defendant introduced the woman to him. However later in his evidence, he identified the woman who provided the service to him as having the same name as the 2nd Defendant. This clearly was unsatisfactory evidence. The only other evidence as to the name of the woman who provided the service to PW2 came from the inspector whose. evidence again was hearsay be causes the sergeant had not been called to testify.

6. Mr. Kilgour for the Crown conceded that without the evidence of the interpreter, he was in a difficult position   attempting to justify the convictions. It was his application that the absence of the interpreter was, in the, nature of a technical omission, and that there was, good reason, on looking at the record and the exhibits, to conclude that the woman who served PW2 was WONG May-ying. He drew the Court's attention to Section 118(1)(b) giving the judge, hearing the appeal the power to receive additional evidence if he thinks it necessary, and suggested that this was a case where I should hear additional evidence.

7. Mr Sanguinetti strongly opposed this suggestion pointing out that the power to receive additional evidence is governed by Section 83V of the Criminal Procedure Ordinance, because Section 118(1)(b) expressly refers to that section and gives the judge hearing the appeal the like powers that the Court of Appeal would have under that section.

8. It is, however, clear from Section 83V(2)(b) that the Court should only hear additional evidence if it is satisfied that there is a reasonable explanation for the failure to adduce it in the lower court.

9. Mr. Sanguinetti argued that no reasonable explanation had been put before me for the failure on the part of the prosecutor to produce that evidence before the Magistrate.

10. Mr. kilgour on the other hand argued that there was a satisfactory explanation.

11. It is, however, clear that the only reason why this evidence was not produced in the lower court is because it was overlooked and the prosecutor did not appreciate that it was necessary for him to call it, despite the fact that it was clear from the evidence of the other witnesses that the sergeant interpreted for Inspector Baker at the premises.

12. On my decision not to allow the Crown to adduce further evidence Mr. Kilgour conceded that he could not argue that the convictions be sustained in view of the fact that the identity of the woman who had given services to PW2 had not been established to be somebody other than the woman who had provided services to PW1.There was, therefore, no evidence to the effect that there were two women providing lewd services  within the premises:

13. For these reasons I allowed the appeal and set aside the convictions of all the other Appellants.