THE QUEEN v. CHAN CHUN KIN AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 119 of 1989

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BETWEEN

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J U D G M E N T

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1. On the 6th December 1988 the 1st Appellant was convicted on Charge A of assisting in managing a vice establishment contrary to Section 139(b) of the Crimes Ordinance, Cap.200 and on Charges C & D of being a man living on the earnings of prostitution of two unknown prostitutes contrary to Section 137(1) of the Crimes Ordinance, for which he was sentenced to six months imprisonment on the A charge and two months imprisonment on each of the other two charges, all to run concurrently.

2. The 2nd Appellant was, on the same date, convicted on Charge B with managing a vice establishment contrary to Section 139(b) of the Ordinance and of two charges of being a woman living on the earning of prostitution, contrary to Section 137(1) and sentenced to fines of $4,000, $500 and $500 respectively.

3. It is against the convictions only that the Appellants both appeal.

4. The vice establishment particularized in the charges A + B is alleged to be the On Ning Apartment, Flat Q, 2/F., Yan On Building, 23 Hong Ning Road, Kowloon. The same address is given for the place where the two Appellants were living on the earnings of prostitution.

5. The main witnesses for the prosecution were two police officers, PW2 and PW3, who posed as customers and each claim to have been provided with the services of a prostitiute at that address. The magistrate made it clear that since they were the only witnesses for the prosecution who testified as to the presence of the two prostitutes he regarded their evidence as crucial.

6. Each of these two witnesses testified that he had been provided with marked notes before the operation began. Their combined evidence was to the effect that the operation was set to start at 11:30 p.m. on the 3rd September 1988. According to Inspector Chan who was the officer in charge of the police operation (PW1) the police party arrived in the vicinity of the apartment house concerned at 11:35 p.m. According to PW2 and PW3, when they arrived at the premises in question, they saw the two Appellants and a female called YIP Sui-yee (who was the 3rd Defendant and who had been jointly charged with the 1st Appellant on the A Charge but whom the magistrate found had no case to answer). The two Appellants and YIP Sui-yee were, according to these officers, at the entrance to the premises. PW2 asked if there was a room to rent and was asked by the 2nd Appellant if that would be for two people. Before he could answer, the 1st appellant asked both PW2 and PW3 "Do you want a girl?" which both officers understood as referring to a prosititute. PW2 replied in the affirmative and asked if there were any Filipinos and was told that there weren't but was offered Thais instead And agreed. Both officers were taken to a room at the end of a corridor where they watched a pornographic film on the TV screen showing sexual intercourse taking place. They watched for about three minutes when the 1st Appellant returned to the room with two Asian females (one taller and the other shorter and fatter) and asked if they would do. The two police officers accepted them as suitable and PW2 chose the fatter girl and entered the room opposite the room where they had been sitting, watching the TV film. PW3 wentwith the slimmer girl into the room where they had been watching the TV film. They each paid for the services, with the two marked $100 notes which had been given to them and each received $70 in change from the 1st Appellant.

7. There is no dispute that if that these police officers described as having taken place in these two rooms was accurate and truthful then the two girls must have been prostitutes and that acts of lewdness had occurred.

8. In the meantime, Inspector Chan (PW1) and the rest of the police party waited nearby for a signal. At about 11:45 p.m. (some ten minutes later) PC11610 (who was not called to given evidence) made a report to the inspector and the police party then moved in. Upon arrival Inspector Chan testified that he saw the door of the apartment was closed and the grill was shut. He saw the 2nd appellant sitting outside the apartment. He showed his warrant card and explained to the 2nd Appellant the purpose of his visit and that it was a raid under the Crimes Authorisation (Exh. P1). He asked her to open the door. The 2nd Appellant told him that she did not have the key to the door or grill. She shouted into the apartment "Police licence check." He warned the 2nd Appellant to open the door immediately or they (the police) might break in. The 2nd Appellant ignored his warning and kept shouting "Police licence check". About two minutes later, the door was opened from inside the apartment house by the 3rd Defendant YIP Sui-yee. The police party and the 2nd Appellant and YIP Sui-yee went into the apartment house, where the inspector went to two rooms where he saw PW2 and PW3 who reported to him what they say had happened.

9. PW2 and PW3 both described in their evidence what had happened while the rest of the police party were trying to gain access to the premises.

10. PW2 described how at one stage his girl was lying on her front on the bed naked while he was dragging out time by massaging her. He heard a Chinese male voice "police, go away" then knocking on the doors. His girl then muttered "cops" and pushed him away. He tried to catch her but she was very quick and grabbed her clothing and opened the door. He saw that the door of PW3's room was also open and the girl also ran out of that room naked. The two girls talked to each other in an unknown language; then they ran to his left and entered the room at the very end of the corridor. It was somewhat like a kitchen. Both he and his colleague chased the two of them. However, both girls escaped through a small iron door in the wall of the kitchen. Both police officers wanted to follow them but the 1st Appellant blocked their way. The two police officers then returned to their respective rooms.

11. PW3's version was much the same. He was in the room with the girl and the pornographic film was still on. At one stage she wanted to have sexual intercourse with him, but he pushed her away and said "not yet".  She continued to fondle his body with her hand. A male voice said "police licence check, get away". The door of his room was opened and the 1st appellant stuck his head in and talked. The girl grabbed hold of her clothing and ran from the room naked. On seeing this, he wanted to given chase and get hold of the girl but she was moving very fast. He could not catch hold of her, so he took a towel with him and ran out with the intention of getting hold of her. He also saw PW2 rush out naked with a towel. When they were chasing the two girls, the 1st Appellant overtook them from behind. He led the two girls to a door next door to their room. The two girls opened the iron grill and went through that door. On seeing that, PW2 and PW3 wanted to go throguh that door, the 1st appellant blocked them. Eventually, PW2 and PW3 went back to their rooms and got dressed.

12. The two girls, according to the police evidence, apparently disappeared, having gone through that iron door and were not seen by anybody else, hence the reference in the living on earnings of prostitution charges to "unknown prostitutes".

13. The 2nd Appellant was arrested in the premises as was the 3rd Defendant YIP Sui-yee. The 1st Appellant was only arrested later. The time the he was arrested is not clear from the evidence. The arresting officer PC23055 (PW5) in answer to a leading question agreed it was at 11:45 p.m. on the 4th September, (which would be some 24 hours after the start of this operation). The reference to 11.45 p.m. must be a mistake because he also said that after arresting the 1st Appellant, he made a note after the operation when he got back to the station. PW1, Inspector Chan, said he ordered PW5 to arrest the 1st Appellant in the early hours on the 4th September before the police party arrived at the police station at 3:10 a.m. It was after they had finished the investigation at the premises. PW4 said he completed picking up exhibits at the premises at 2:46 hours on the 4th September. PW2, on the other hand, said that after the 1st appellant had blocked the police officers from giving chase after the two unknown prostitutes, he later saw the 1st Appellant at about 2:45 a.m. on the 4th September at the entrance of these premises. The 1st Appellant said he was arrested after 2 o'clock so the preponderance of evidence is that the 1st Appellant was arrested in the early hours of 4th Septmeber.

14. PW4, PC20183, (who was the Exhibit officer) testified that Inspector Chan (PW1) gave him the serial number of the four marked $100 Hong Kong Bank notes before the operation began. After the operation had been carried out, he seized a number of exhibits from inside the premises and in particular, he found from a metal box marked "Cadbury", Exh, P12, $3,893.20 in cash, amongst which were the four marked notes, Exh. P13. Also in the drawer of the counter of the premises was an insurance policy mailed to the 2nd Appellant from the Wing Hang Bank, Exh. P25, and a Chinese re-entry pass for the 1st Appellant, Exh.P26. In another drawer, he found ten brand new packets of lubrication jelly, Exh.P27.

15. In the cleaner's room - that is the 2nd from the right (which he described as the room used by PW3 before the arrival of police party), and also from the first room on his left (which he described as that used by PW2 before the police raid) he also seized exhibits.

16. From the latter room (i.e. the first on the left) he testified that he found a purple plastic bucket, Exh, P29 containing condoms, Exh.P30, some containing toilet tissues, Exh.P31, a torn packet of condoms, Exh.32. On the floor were a pair of blue slippers, Exh.P36, amongst the items seized was a television set, Exh.P40, which was in use showing a pornographic film when he arrived at the apartment. There was no video recorder and the programme came from a video cassette recorder in the cleaner's room.

17. In the room used by PW3 (second room on the right) a blue litter bin, Exh.P41, was found, also contaminated condoms, Exh.42, contaminated toilet paper, Exh.P43, torn packages of condoms, Exh.P44. Also found were a pair of green rubber thongs (slippers), Exh.P47, a pair of white female sandals, Exh.P48, two rolls of toilet papers partly used, Exh.P49, some used pieces of soap, Exh.P50, a TV set brand name Blue Diamond, Exh.P51 with plug, Exh.P52. From the storeroom (or cleaner's room) he took a radio cassette recorder, Exh.P54 and a cassette from inside the recorder Exh.P55, which was a pornographic film. He also seized two used tubes of lubricating jelly, Exh.P56, unused condoms, a carton of these, Exh.P57, and the box in which they were contained, Exh.P58, five pieces of soap, Exh.P59, and a box which contained them, Exh.P60.

18. PW5 gave evidence that when he arrested the 1st Appellant and searched him, he found on him a black purse-inside was $1,792.00, bunch of keys (seven or nine), one of the keys had a purple badge and that key could be used to open the second door. He tried the keys and found that some of the keys could open the main entrance door of the apartment house and the iron gate. Two can open two different drawers of the counter.

19. The 1st Appellant gave evidence in his own defence which consisted of an alibi in relation to the time that PW2 and PW3 had said that they saw him at the premises before the main police party arrive. He denied that the keys were found on him. In support of his alibi, he called DW2, Chan Chou.

20. The 2nd Appellant did not give evidence in her defence but called the 3rd Defendant YIP Sui-yee to give evidence on her behalf. This lady testified that PW2 and PW3 had identified themselves as police officers and asked to rent rooms until 12:00 noon the next day and that she told them the rate was $120. Each of them paid $200 which she put into the drawer and exchanged each with $80. It was her evidence that the 2nd Appellant, who was the female proprietor, was not present at this time and only returned later. Madam Yip said that PW2 was in room 307 and that it was on the right when you turn into the corridor, not at the end of the corridor. PW3 went into room 303 on the opposite side at a slight angle, not at the end of the corridor. Having taken PW2 and PW3 to their rooms and taken their money, Madam Yip continued with her work. She saw the 2nd Appellant standing outside the door trying to use her key to open the door. She went over to open the door and the police came in. She denied hearing the 2nd appellant call "licence check". She said that this was the first time she had seen the 2nd Appellant after she had gone to the dentist.

21. She testified that the 1st Appellant was not at the premises when the two police officers, PW2 and PW3 came, but that he had been there some time after 10:00 to ask for the 2nd Appellant and left after being told that the 2nd Appellant had gone to see a doctor. She denied seeing the two alleged prostitutes.

22. After hearing quite lengthy submissions, the magistrate wrote a short judgment in these terms:-

"The Defence is that these two prostitutes never existed. That a police raid took place and found no prostitutes. Accordingly evidence was invented. This must have involved the whole police team. The prosecution evidence is in part somewhat perplexing. The fact that the two prostitutes managed to gather their clothes and slip out of each of the two rooms and escape both police officers. They then got through he door-apparently onto a canopy. It is suggested that one could not get to ground from this canopy. But why have a door that led to a canopy in the first place unless there was some means of getting to the ground.

I can understand that the police officers would not follow. They were naked and had they arrested the two prostitutes on the street - what would they do then? I do not understand why they did not detain D1 (1st Appellant), or at least try to.

I did not believe the evidence of DW1 and DW2. I believe the evidence of PW5 and that on searching D1, he found the keys on him. I did not believe D3. Her evidence that PW2 and PW3 informed her that they were police officers I believe cannot be true. I do not believe that D2 would leave her premises, clients and money in the control of some-one she had not met previously and who was only employed for that night as a relief.

I am therefore obliged to decide whether I have a doubt that the two prostitutes existed or not. I accepted the evidence of PW2 and PW3 and convicted the defendants D1 and D2."

23. He did not specify to which particular charges he was referring. However, it appears that he was referring to all charges because he passed sentences on all charges.

24. About a week later application was made to the magistrate to review the convictions by (1) hearing further evidence in respect of the 1st Appellant's alibi from a Mr Wu and (2) inspecting the premises in question.

25. The magistrate did review his decision and did reopen the proceedings and hear the evidence of Mr Wu, but he refused to inspect the premises.

He said:-

"I have already heard this and convicted these defendants and the purpose of this review is to receive and consider the evidence of Mr Wu. I have considered his evidence in conjunction with that of D1 and D2. Having considered this evidenc in its entirety I do not change my verdict. I found Mr Wu's evidence unconvincing and I do not believe him.

Defence requested visit to view On Ling Apartment Building.

3/9/88 incident took place - Now end of December - Defence have asked for review. Value of visit. Now.

Defence : in the interest of justice go and look.

Request refused."

26. On the appellant's filing notice of appeal against conviction dated the 21st December on the ground that the convictions were unsafe and unsatisfactory, the magistrate set out a lengthy Statement of Findings dated the 4th January 1989.

27. Mr Macrae who represented the appellants in the Magistrates Court and who now represents them on the apeal, argues that it was essential for the prosecution to establish that the premises in question were used wholly or mainly by two or more prostitutes for the purposes of prostitution, and for this decision he of course had to be sure of the existence of both wome. If the magistrate had a reasonable doubt on this, the Crown case failed. He had to make a proper evaluation of the evidence and in particular, that of PW2 and PW3, because nobody else saw these two women or heard the Appellants' arranging these two girls for these two officers.

28. Ground 1 is set out in the Notice of Appeal as follows:-

"After a thorough revision of the evidence both in chief and cross-examination, the learned Magistrate concluded (p. 106 Appeal Bundle): 'I considered the evidence as a whole. There is no doubt the disappearance of the two prostitutes was odd. I reasoned that the two police agents would be very unwilling while naked themselves to chase and apprehend two naked females on the streets. I could not understand why they did not try to arrest D1. However what I had to decide was did the events happen as related by the prosecution witnesses or was it fabrication ....... The Police witnesses were credible and it did not seem to me that they had as a unit fabricated the evidence. I convicted the Defendant.? In so finding the learned Magistrate failed to make a proper or sufficient evaluation of the evidence for the Crown and the credibility of its witnesses."

29. Mr Macrae suggests that the magistrate's Statement of Finding was lamentably inadequate. In this respect he relies on the dictum of O'Connor, J. in R. v Chong Kam-sau MA No. 859/85:-

"The requirements for proper findings are set out in R v Ma Sai Soon Criminal Appeal 949/78, R v Lam Kam Ming Criminal Appeal 607/79, R v Lai Yuk Hui (1981) H.K.L.R. 691. As I said in Lam Kam Ming's case the reasons for verdict should, in a manner appropriate to the circumstances of the case, illustrate the salient points in the case and demonstrate that the evidence has been evaluated. Significant inconsistencies and conflict should be dealt with in such a manner as to indicate how those matters were resolved. There was no simple formula for what ought to be in a judgment, as ti must be related to the circumstances of the particular case. The magistrate should state his reason, to such an extent as will inform the parties as to how and why the particular verdict was arrived at, and furthermore, will enable an appellate court to perform its duty."

30. Mr Macrae accepts that each case must be dealt with as its particular circumtances require. However, he submits that 95% of the Statement of Findings is a review of the evidence. The meat of the judgment is contained in the following passages -

"I considered the evidence as a whole. There is no doubt the disappearance of the two prostilutes was odd.  I reasoned that the two police agents would be very unwilling while naked themselves to chase and apprehend two naked females on the streets. I could not understand why they did not try to arrest D1. However, what I had to decide was did the events happen as related by the prosecution witnesses or was it a fabrication. The Defendant D1 was an unconvincing witness and this was accepted by the Defence Counsel when making his final submission. I did not believe the evidence of DW2 Mr Chan. Most notably in cross-examination he was most unconvincing. The Defendant Madam CHU (D2) did not given evidence and this is her right. The third Defence witness was not credible either. I found it difficult to believe that even if matters were as she suggested-the two police agents would announce that they were policemen. Further I did not believe that Madam CHU (D2) would go away and leave her business, clients and money in the hands of a person she did not know and had met for the first time that evening. The police witnesses were credible and it did not seem to me that they had as a unit fabricated the evidence. It convicted the Defendants."

31. This part of the Statement of Findidngs was followed by a historical account of what happened on the review and the magistrate's reasons for not believing the evidence of Mr Wu.

32. Mr Macrae concedes that the magistrate dealt with Mr Wu's evidence perfectly properly and fairly, but says that the magistrate refused the application to visit the premises because it seemed to him that the application should have been made at the trial. As the offence occurred on the 3rd September he could not, by looking at the apartment on the 21st December, know how it had been on the 3rd of September.

33. Mr Macrae points out that the magistrate did not reconsider the prosecution evidence at all.

34. He argues that the magistrate's Statement of Findings did not do justice to the real issue in this case. This was not the straightforward sort of case that could be disposed of by saying I believe the prosecution witnesses and disbelieve the defence witnesses.

35. Ground 2 is that the magistrate incorrectly applied the burden and standard of proof.

36. There are in fact ten grounds, the tenth being that in all the circumstances the convictions are unsafe and unsatisfactory, but it is apparent that the reasons for saying this are set out in the earlier gorunds.

37. The basis of the Appellant's second ground of appeal is that the use of phrase "However what I had to decide was did the events happen as related by the prosecution witnesses or was it fabrication", the magistrate was suggesting that it was part of the defence duty to satisfy him that the Crown evidence was fabricated whereas all they had to do was to raise a reasonable doubt. He didn't have to decide one or the other. Indeed, proof that the police officers had fabricated the case would be very difficult for the defence. If the magistrate wasn't sure about the correctness of the prosecution evidence (i.e. that two "speechless" naked females outwitted two police officers,) he should acquit.

38. Ground 3 is that the learned Magistrate failed to consider how much or at all his feelings of disquiet about a) the disappearance of the two prostitutes and b) the failure of PW2 and PW3 to try and arrest D1, affected the credibility of PW2 ad PW3.

39. Mr Macrae argues that the magistrate did not deal with these matters at all; he simply says  "I didn't understand why they didn't try to arrest D1" and there it is left.

40. So far as the disappearances of the two alleged prostitutes is concerned, he simply says in the extemporary judgment that he found this ``perplexing"and in the Statement of Findings "odd" and his reasoning that the two police officers would be very unwilling, while naked themselves, to chase and apprehend two naked females in the streets was unsatisfactory and contrary to the evidence of the police officers.

41. Ground 4 is that the learned Magistrate's reasoning that the two police agents, PW2 and PW3, would be very unwilling while naked themselves to chase and apprehend two naked females on the streets was not a proper conclusion on the evidence. By so concluding the learned Magistrate ignored the following evidence from PW2 and PW3, inter alia:

"PW2 (i) 'The two Asian Women went through the door, my colleague and I wanted to follow them. D1 blocked our way with his arm and said 'Don't be scared return to your rooms ....' (p. 23-24 Appeal bundle)

(ii) 'The two girls opened the iron door and went through that door. On seeing that PW2 and I wanted to go through the door and chase the two women but we were blocked by D1.'(p. 40 Appeal Bundle)

(iii) Q. : If got door open you would have followed them?

A. : Yes.

Q. : Had a towel and so had PW2?

A. : Yes.

(p.44 Appeal bundle)"

42. Ground 5 is that the learned magistrate failed to consider at all the major discrepancy between PW2 and PW3 concerning the disappearance of D1. In evidence PW2 maintained, inter alia, as follows:

W2 (i) 'The first defendant then closed the iron door. He had never gone up (sic) but was inside. So my colleague and I went back to our respective rooms.' (p. 24 Appeal Bundle)

(ii) 'D1 did not escape throught that door. My impression at that time was that he would return to the Apartment house - so I thought other colleagues would arrest him.' (p. 32 Appeal bundle)

(iii) Q. : When did you realise D1 had escaped?

A. : When I was giving a report to Inspector Chan - Inspector Chan had given an order to search for the Boss D1 so I concluded he had escaped. (p. 33 Appeal Bundle)

In contrast, PW3 maintained, inter alia, as follows:

PW3 (iv) 'D1 pushed me forcefully away. PW2 was standing behind me. D1 also rushed out through the iron door. Locked the iron door from outside. At that time I did not know the door locked I tried to push it open but my efforts failed. PW2 and I went back to our rooms and dressed.'(p. 40 Appeal Bundel)

(v) Q. : Was PW2 present when D1 exitted through the door?

A. : Yes.

Q. : Did he help to open the door?

A. : After D1 had left - yes positive.

(p. 43 Appeal Bundle)"

43. In his Statement of Findings, the learned magistrate erred, therefore, in fact when he summarised PW3's evidence as follows:

"The witness then described how Defendant D1 blocked the exit through which the two women escaped. His evidence was similar to PW2. He later reported to Inspector Chan (PW1). (p. 102 Appeal bundle)"

44. Mr Macrae refers to the evidence and emphasises that PW2 was emphatic that the 1st Appellant did not escape in the following passage at p.31 of the Appeal transcript which is not set out with the other passages in this particular ground of appeal.

"A. : Before D1 left my sight, D1 showed no action of going through the door. When my colleague and I were dressing we had no idea of what D1 did.

Q. : Are you saying that after the girls left D1 bolted the door?

A. : I cannot recall if D1 had bolted the door. He told us not to be scared. I have no idea if he had bolted the door?

Q. : You obeyed D1 - that's what you did?

A. : I did not obey but I did want to dress as I was cold and naked.

Q. : According to you D1 had assisted the flight of two girls you wanted. Why not immediately arrest D1?

A. : D1 did not escape through that door. My impression at that time was that he would return to the Apartment house - so I though other colleagues would arrest him, second, if he had gone to the canopy I would not have gone after him. I had consideration for my safety."

45. Mr Macrae refers to photograph P2J showing the bolt on the inside of the door through which the prostitutes were alleged to have disappeared.

46. Mr Macrae suggests that the difference in the evidence of the two police officers about whether the 1st Appellant escaped or not is a dramatic inconsistency and the magistrate made no mention of it and made no attempt to deal with it. On the contrary, he misinterpreted their evidence which he described as "similar" in this respect. One cannot doubt that it is a significant factor because that evidence of the 1st appellant escaping accounts for his not being found at the scene, says Mr Macrae.

47. Ground 7 is that he learned Magistrate did not reject the evidence of the 1st Appellant but merely referred to him as "an unconvincing witness"(P.8 statement of Findings).  Moreover the learned Magistrate gave no clue as to what he accepted, what he rejected and, if necessary, to what extent and why he accepted or rejected his evidence. Accordingly the learned Magistrate failed properly to evaluate the evidence of the 1st Appellant.

48. Mr Macrae then refers to his ground 6 of the grounds of appeal as follows:

"The learned Magistrate failed to address his mind to whether the Crown had established beyond reasonable doubt that the premises were used 'wholly or mainly' for the purposes of prostitution, in view of the following evidence, inter alia;

PW1 : 'I instructed the squad to search the premises while officers cautioned D2 and D3 - the search was for any other persons in the premises. There were a few people-customrs of the house I believe.' (p.10 Appeal Bundle)

PW2 : Q. : 'After the raid were you not aware of other customers? No prostitute found?'

A. : 'Yes.'

(p.35 Appeal Bundle)

PW3 : Q. : 'Is it right a number of other rooms other than those of you and other agent were occupied.'

A. : 'Yes.'

(p.46 Appeal Bundle)"

49. Mr Macrae submits that the evidence in this case establishes that there were nine rooms in which six rooms were occupied and therewere other customers present besides the two police officers. He relies on a decision of Bewley, J in R. v CHENG Sung-hin MA No. 498/85 in which the judge distinguished the facts before him from those in A.G. v TANG Ping-wing (1982) H.K.L.R. 1 on the basis that in the latter case the Court of Appeal was concerned with premises that were only opened at night and during the time of operation the escort agency was engaged in only one activity, namely the organising and arranging of prostitution, whereas in the case before him there was an innocent letting of rooms contemporaneous with arranging of prostitution. He reached the conlusion that the premises could not be said to be wholly or mainly used for the latter purpose and added that were it otherwise, every hotel and apartment house where employees complied with a guest's requirements for female company, would be at risk of being condemned as a vice establishment.

50. Mr Macrae draws attention to this passage in the Statement of Findings of the magistrate:

"I considered the evidence as a whole including the nature of the building and its exits, the delay in the admission of the police, persons knocking on doors to advise of the police raid and persons escaping from hidden or partly hidden exits prima facie made a case to answer."

Whilst he does not quarrel with that, he says that the magistrate has not gone on to make a further finding in view of the evidence and the authority that the premises amounted to a vice establishment because it was used wholly or mainly for the purposes of prostitution and one is left wondering whether he ever ultimately considered this question at all.

Ground 8:

"The learned Magistrate determined that there must have been a way from the door through which the alleged prostitutes fled to the street (p.86 Appeal Bundle). The evidence form the Crown witnesses, however, was by no means clear on this point and the evidence of the first Appellant emphatic that 'There are two steps and then fall to the ground-anyone would be dead' (p.61 Appeal Bundle.) Accordingly, the learned Magistrate's finding was not properly based and the invitation, upon Review application, for him to inspect the scene to satisfy himself on this matter wrongly refused."

Mr Macrae refers to a passage in the magistrate's extemporary judgement:

"It is suggested that one could no get to ground from this canopy. But any have a door that led to a canopy in the first place unless there was some means of getting to the ground?"

And argues that a canopy doesn't necessarily consist of a staircase to the ground. PW2 had given evidence that he had no idea about this whereas PW3 had merely referred to seeing an iron canopy. PW1 was asked about this in the following passage from his cross-examination:

"Q. : Inspector if that is the door through which escaped-no possible way down to street?

A. : After that occasion I confirmed could lead to street.

Q. : Were there steps?

A. : There are steps-not staircase.

Q. : Did you supervise photographer?

A. : Yes.

Q. : Why no photo - taken of such steps?

A. : Not supervised by myself-but by my sergeant.

Q. : Once open door at P2J - access to iron staircase?

A. : Yes, I believe that.

Q. : You did not check it on the night of the raid?

A. : That is correct.''

51. So PW1 doesn't eleborate how he checked that matter, says Mr Macrae. Bearing in mind that the 1st Appellant had said that anyone would be dead, it doesn't follow that there must be a way to the ground because there was an iron canopy.

52. Mr Macrae submits that the defence application for a visit to the premises should have been acceded to on the review.

Ground 9:

''There was a material irregularity in the conduct of the trial when counsel for the Crown in responding to Defence counsel's closing address, departed from his function of either correcting wrongly stated matters of fact or replying to matters of law by addressing the Court on the facts and commenting upon them. The Appellants were unfairly prejudiced by this procedure, particularly since the learned Magistrate adopted at least two comments in rejecting the evidence of the Defence witnesses in his Statement of Findings (p.84 Appeal bundle)"

53. Mr Macrae concedes that he did not raise this matter at the trial but mentions that the magistrate's acceptance of two of the factual arguments put forward by the prosecutor indicated that the Appellants had been prejudiced.

54. In all the circumstances, it is Mr Macrae's case that the convictions are unsafe and unsatisfactory.

55. Mr Bruce for the Crown submits that in essence Mr Macrae's submission is as to the inadequacy of the Statement of Findings. Mr Bruce does not seek to argue that the Statement of Findings should be held up as an example to all junior magistrates, but suggests that the magistrate had said enough. He accepts the correctness of the statement by O'Connor, J in Chong Kam Sau's case but argues that there is no simple formula. He accepts that recantation of the evidence is no substitute for evaluation but contends that this was a simple straightforward case and that the real issue was "Did these girls exist?" If they didn't, or the magistrate had a reasonable doubt as to their existence, the Crown must fail. If, on the other hand, they did exist, inevitably the magistrate must have convicted. Thus the magistrate was rightly concerned with whether the police evidence of their existence was a fabrication or otherwise. By stating this issue, the magistrate wasn't doing any damage to the concept of the burden and standard of proof. There was no middle ground. At p.86 of the appeal record the magistrate correctly recognised that he was obliged to decide whether he had a doubt about the presence of the two girls. Nothing in the Statement of Findings had taken away from that direction. It was perfectly proper for the magistrate to consider the defence evidence first, because if that caused a doubt, that was the end of the matter.

56. So far as the 1st Appellant's case was concerned, it was simply that he wasn't there. He was somewhere else. A simple issue. Ultimately, the assessment of a witness' evidence is intuitive. The magistrate rejected the 1st Appellant's evidence. There was no complaint about his evaluation of the rest of the defence evidence.

57. The decision rested ultimately on whether he believed the prosecution witnesses. He found them credible. Defence counsel, having crystallized the main issues almost from the beginning, was now criticising the magistrate for concentrating on those very issues.

58. So far as the magistrate is criticised for not dealing with 1) the escape of the prostitutes, if they ever existed, and 2) the escape of the 1st Appellant, he concedes that he has to accept that there is an inconsistency between the evidence of PW2 and PW3 and that the magistrate nowhere directly confronted that inconsistency, but he points out that Mr Macrae certainly put that inconsistency to the magistrate in very strong terms. The magistrate must have had that matter in mind because it was brought his attention in the clearest possible way. It is unsatisfactory in the evaluation that it wasn't mentioned. It is part of the central issue. The magistrate must have resolved these matters so that it wasn't a matter that concerned him if he found there was no fabrication.

59. So far as the escape of the prostitutes was concerned, Mr Bruce concedes that Mr Macrae has a valid criticism of the magistrate in rationalising their non-arrest because they were naked, but he submits that there was no evidence as to what their feelings would have been in the street. He considers the magistrate's rationalization as being speculative, but sensible speculation. Even Mr Macrae accepted that the 1st Appellant was not a good witness at the trial.

60. So far as Ground 6 is concerned, Mr Bruce argues that convictions must follow if PW2 and PW3 were believed. The only evidence of activity is prostitution and vice establishment activities. It is quite wrong to expect the police to establish what the other customers were doing. That cannot be right, he says. Throughout the cross-examination of the prosecution witnesses and closing submissions, Mr Macrae had put at the fore front an outright fabrication. The magistrate dealt with that issue as presented to him and had no doubt on that issued.

61. The prosecution evidence was that you could get down from the door where the two prostitutes escaped. The 1st Appellant's evidence that you couldn't was disbelieved. So there was some evidence that when the prostitutes disappeared into the night, they could do so without falling.

62. The issue was dealt with at the trial. The magistrate was entitled to deal with it at the review but it should have been done at the trial.

63. So far as the reversal of speeches is concerned, he concedes that Mr Macrae is right, but obviously didn't place too much importance upon it at the trial because he didn't raise any objection.

64. Mr Bruce submits that the magistrate has done enough, perhaps just enough, in his Statement of Findings. He concedes that one of the inconsistencies is not resolved by the magistrate but contends that the magistrate found it of no great moment.

65. So far as the "wholly or mainly'' point was concerned, Mr Bruce submits that the convictions necessarily follow once the prosecution evidence is believed.

66. So far as Ground 1 is concerned this ground of appeal is based upon what the magistrate said in his short judgment and in his Statement of Findings. It is aimed at the way the magistrate assessed the evidence for the Crown. It is convenient for me to deal at the same time with Grounds 3, 4 and 5 which are aimed at the magistrate's assessment of, in particular, the evidence of PW2 and PW3.

67. The Magistrate stated in his short judgment that he did not believe the defence witnesses. He set out parts of the prosecution evidence which he considered perplexing and then specifically went on to say that he accepted the evidence of PW2, PW3 and PW5. In his Statement of Finding he described the police witnesses as credible and it did not seem to him have been the case, had the defence witnesses been telling the truth.

68. That was really all he said. No complaint is made about the way he assessed the credibility of the defence witnesses other than the 1st Appellant. Ground 7 contains a complaint about the way he dealt with the evidence of the 1st Appellant. It is said that he didn't reject the 1st Appellant's evidence but merely referred to him as "an unconvincing witness?

69. However, it is clear from his conviction of the Appellants that the magisdtrate did reject the evidence of the 1st Appellant. Even Mr Macrae conceded at the trial that the 1st Appellant wasn't a good witness and that his answers were too glib and prepared. Mr Macrae warned the magistrate that this did not necessarily mean that the 1st Appellant was lying and that proof of a false alibi didn't mean that the 1st Appellant was guilty and a conviction should not necessarily follow.

70. In view of this concession concerning the 1st appellant's demeanour at the trial, I cannot say that the magistrate reached the wrong conclusion regarding his credibility.

71. I do not consider that it matters in what order the magistrate considers the credibility of the witnesses as long as he does so in the light of the evidence as a whole and as long as he directs himself properly on the burden and standard of proof.

72. The magistrate was alive to the two matters referred to in Ground 3 which he found "perplexing"and ''odd'' He specifically referred to them in both his short judgment and his Statement of Findings. I find it difficult to hold in the circumstances that he did not consider how much or at all his feelings about these two matters affected the credibility of PW2 and PW3. He did at least show that he had taken them into consideration.

73. The magistrate's reasoning can be criticised as in Ground 4 when he said in his short judgment that he could understand that the police officers would not follow the two prostitutes because they were naked, but as Mr Bruce had said there was no evidence as to what PW2 and PW3's feelings would have been in the street. It is difficult to imagine that assuming the police officers had been prepared to follow the girls, that they would have been prepared to follow them in the streets naked. That seems to me what the magisdtrate was in fact saying.

74. So far a sGround 5 is concerned, it is correct that the magistrate does not refer to the discrepancy between the evidence of PW2 and PW3 in his short judgment or his Statement of Findings, but there can be no doubt that Mr Macrae had brought it to his attention immediately before he gave judgment. I cannot accept in the circumstances that having had it emphasised to him by Mr Macrae, he gave no consideration to it. He has said that he considered the evidence as a whole.

75. The magistrate had the advantage of seeing the prosecution witnesses giving evidence. Their evidence as to the existence of these two prostitutes was found to be credible. That was a finding made in the light of the evidence as a whole.

76. Of course, that by itself would not justify a conviction. The magistrate had to be satisfied so that he was sure that the essential ingredients of the offences was established.

77. I do not accept that the magistrate incorrectly applied the burden and standard of proof as alleged in Ground 2 or that he failed to apply his mind to whether the Crown had established beyond reasonable doubt that the premises were used wholly or mainly for the purposes of prostitution.

78. In his short judgment he correctly indicated as an essential part of his reasoning process that he was obliged to decide whether he had a doubt that the two prostitutes existed or not, it having been the lynchpin of the defence submission that this was the vital question.

79. The inference here is that he is saying that if he had a doubt, he would acquit as he had been urged to do by Mr Macrae.

80. The fact that he convicted indicated quite clearly that he had no doubt about the existence of these two girls. I agree with Mr Bruce that nothing is said in the Statement of Findings that takes away from this direction.

81. It is true that he did not go on to say in either his short judgment or his Statement of Finding that he was satisfied beyond reasonable doubt that the premises were used wholly or mainly by two or more women for the purposes of prostitution. But again the necessity of considering this is a matter upon which he had been addressed at the end of the Crown case and in the final submission. He specifically referred to this submission in his Statement of Findings and considered that the prosecution evidence as a whole raised a prima facie case to answer. In this respect he took into consideration the nature of the building and its exits, the delay in the admission of the police, persons knocking on doors to advise of the police raid and persons escaping from hidden or partly hidden exits.

82. It would have been better if he had stated precisely what his primary findings were and what inferences he drew from them but I cannot say in the circumstances of this case that he didn't consider this aspect.

83. The magistrate had had the benefit of a well argued case on behalf of the Appellants. I am not prepared to say on reading the record that he did not given counsel's submissions careful consideration.

84. So far as Ground 8 is concerned, there was evidence from PW1 that he had confirmed that the door through which the girls were alleged to have escaped could lead to the street. As Mr Bruce had pointed out the 1st Appellant's evidence had been disbelieved. The question whether the magistrate is to view the scene relevant to a fact in issue is a matter for the discretion of the trial magistrate and depends to a large extent on the degree of assistance he considers it would given him in deciding that issue. I am not prepared to hold that he exercised his discretion wrongly or upon wrong principles.

85. I do not consider there is any merit in Ground 9 since Mr Macrae did not raise any objection to the order of speeches at the time.

86. Ground 1 is really a complaint about the adequacy of the Statement of Findings. This is a matter must be considered in the individual circumstances of each case. Having regard to the way the case was argued and the contents of his Statement of Finding, I consider the magistrate had said just enough.

87. I would however repeat what I have said many times before that it is desirable and would be helpful to the appellate court if the magistrate would set out what his primary findings are and what inferences he drew from those findings.

88. No point has been taken that the magistrate did not set out the essential ingredients he found proved in respect of the living on the earnings of prostitution charges. Clearly once the prosecution evidence was believed, there was sufficient evidence to support a conviction on these charges. In this case, the grounds of appeal are that the convictions are unsafe and unsatisfactory.

89. Having given very careful consideration to counsel's submission, I do not consider that the convictions are unsafe and unsatisfactory and the appeals are therefore dismissed.