HKSAR v. WONG CHI KAM

HCMA1158/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1158 OF 1997

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J U D G M E N T

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1. In this case the defendant was convicted after trial of one charge of managing of vice establishment. The facts of the case was that on 25th September 1997 a party of police had sent in two undercover agents at about 6.25 pm to the Tin Hung fingercure premises situated in New Asia Building, 1st Floor, 4A Argyle Street, Mong Kok. Two police officers, PW2 and PW3 at the trial went into these premises within minutes of each other.

2. The prosecution's case was that they were both met in the premises by the appellant who then offered them services of girls, what he called local girls, and informed each of them that the services would cost in one case $450 and in another case $460. These services included bang and blow jobs besides massage services as well. Each of the two undercover agents agreed and a girl was provided to each of them. They were taken into a room respectively.

3. In the room, according to the officers, they had a shower with the girl and then ended up in bed undressed, both of them, and lewd services were provided. It came to a point when the officer revealed his identity, asked the girl to dress and dressed himself and waited until the back-up party of the police headed by Inspector Dillon came to the premises. When the back-up party came to the premises, the prosecution's case was that Inspector Dillon came into the premises first, was greeted by the appellant. After a short conversation with him, she brought him into the two respective rooms in which the officer and the girl was in and there certain conversation took place.

4. The defendant did not give evidence at the trial but from what was put to the witnesses at the trial by his counsel, it is clear that the defence case was one of mistaken identity that whilst the defendant did not dispute the fact that he was in the premises when the back-up party of police came in, he denied that he was the person who had met the two undercover agents when they first entered the premises and he denied that he was the person who had offered those services to them.

5. It is clear from that that the defence run was one of mistaken identity by the undercover agent as to this appellant being the person who had offered those services to them. The evidence in the court below was that in each of the room the officer pointed out this appellant as the person who had shortly before offered such services to them providing them with each a girl as well as a conversation between the officer and the inspector as to what had transpired inside the room with the girl.

6. The appeal as put forward by Mr Callaghon this morning was that there had been inconsistencies of such a degree in the evidence of the inspector and also from PW2 and PW3, the two undercover agents, such that the magistrate should, but did not deal, with those inconsistencies in arriving at the conclusion that he did. I note first of all that before coming to his finding of facts in his statement of finding the magistrate did acknowledge that there were inconsistencies between the various prosecution witnesses and also alluded to the fact that the investigation could have been more professionally executed. However, despite these inconsistencies and his finding of fact he found that the prosecution witnesses were honest and truthful witnesses.

7. The central matter for the magistrate to decide in the light of what was put to the witnesses by defence counsel must have been one of identification, whether the officers had correctly identified the appellant as being the person who had offered them those services.

8. Had the defence been one of, for example, a frame-up by the police, I might have been more sympathetic to the points raised by Mr Callaghon this morning but in light of the defence actually run and put to the witnesses at the trial there was clear evidence before the magistrate of the identification by the two undercover agents, PW2 and PW3, as to this appellant being the person who had offered them the services when they first entered. Moreover, the bulk of Mr Callaghon's submission related to the conversation between the two respective undercover agents and the inspector inside the room as to what had transpired in the room.

9. It is generally accepted that when a witness is told something by another and repeats that at a later time, as for instance at trial, there almost invariably creeps into the witness recounting of what was told to him discrepancies.

10. All these discrepancies were fresh in the mind of the magistrate at the time he gave his judgment in the case and whilst they may not have been referred to in submission by defence counsel, from what was said by the magistrate I am of the conclusion that these matters must have been in the foremost top of his mind when he gave his judgment. Moreover he did refer to and alluded to them in his statement of findings and it was despite those discrepancies that he had made the findings that he did.

11. Once the magistrate had found and accepted as true the evidence of the two police officers that it was the defendant who had met them when they entered and offered them the services, that, being central to the issue in dispute in the case, would be sufficient evidence upon which the magistrate could convict. In this case having heard Mr Callaghon, having seen the discrepancies referred to by him and having read the statement of findings by the magistrate, I can see no grounds to criticise the way the magistrate had gone about his findings. Accordingly, this appeal is dismissed.

I/we certify that to the best of our ability and skill, the foregoing is a true transcript of the audio recording of the above proceedings

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B. Pirie
Date: 28 March 1998