HKSAR v. CEN ZHI CHENG

HCMA1186/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1186 OF 2007

(ON APPEAL FROM KCCC 3683 OF 2007)

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J U D G M E N T

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1. The appellant was convicted at Kowloon City Magistracy of an offence of soliciting for an immoral purpose, contrary to section 147(1)(a) of the Crimes Ordinance.  He was fined and sentenced to 14 days’ imprisonment which sentence was suspended for three years.  He now appeals his conviction.

2. The prosecution case was that a woman police officer (“PW1”) on an anti vice-operation, dressed in plain clothes, was approached by the appellant as she stood on the corner of Soy Street and Reclamation Street in Mongkok.  The appellant asked her whether she was waiting for anyone and then offered her $300 for “love making and oral sex”.  PW1 agreed in her evidence that when young women stood on that particular corner they may well be taken for prostitutes and she agreed that she was pretending to be a prostitute.

3. Section 147(1)(a) is in the following terms :

“	(1)	A person who in a public place or in view of the public :-
		(a)	Solicits for any immoral purpose.
		(b)	…
		shall be guilty of an offence …”

4. There were a number of grounds of appeal advanced on behalf of the appellant by Ms Draycott.  It was agreed that her sixth and final ground was a compendium of the others and wholly encapsulated the arguments advanced by the appellant.  It was :

“	The Magistrate was wrong to find that a man who approached a prostitute or someone who was pretending to be a prostitute, with a view to engaging her sexual services was guilty of soliciting for an immoral purpose under s147 of the Crimes Ordinance Cap 221.”

5. Without doing particular injustice to Ms Draycott’s arguments, they can be reduced to two fundamental propositions.  Firstly that a male cannot solicit a female who is a prostitute, or who he thinks is a prostitute, going about her trade, and secondly that what took place in the present case did not amount to a solicitation by the appellant.

The first proposition

6. The argument in this regard was that section 147(1)(a) was not intended to apply to a situation where a male approached a female prostitute for the purposes of “soliciting” her services.  Ms Draycott relies on, in support of her argument, the case of Crook v. Edmondson [1966] 2 QB 81.  That case concerned a defendant who the prosecution alleged had been observed persistently soliciting women in a public street for the purpose of having intercourse contrary to the provisions of section 32 of the Sexual Offences Act 1956.  That section was similar to but not identical to section 147(1)(a) and was in the following terms :

“	It is an offence for a man persistently to solicit or importune in a public place for immoral purposes’.”

7. The real issue however before the court was the meaning to be attributed to the words “for immoral purposes” and whether that phrase, given the history and context of the legislation, encompassed sexual intercourse between a man and a prostitute.  The majority, Winn LJ and Parker LJ, held that it did not.  Sachs LJ (dissenting) was of the view that “the decision as to what is an ‘immoral purpose’ should be the responsibility of the jury of the day or of whoever is entrusted with that decision”.

8. While section 32 of the Sexual Offences Act was in similar terms to section 147(1)(a), there are significant differences.  Section 147(1)(a) is contained within a sub-division of Part XII of the Crimes Ordinance headed “Miscellaneous Offences”.  Part XII concerns itself with sexual offences and section 147(1)(a) therefore, like section 32, must be restricted to sexual offences.  However given the context of the legislation in which it appears, it does not apparently have a function of consolidating previous legislation.  Further it is not restricted in its application by reference to gender as is section 32; it does not require “persistent” solicitation as does section 32, nor does it encompass “importuning” as does that section.  For these reasons the narrow interpretative approach adopted by the majority in Crook v. Edmondson which depended heavily on the use in section 32 of terminology identical to that in previous legislation, notably the Vagrancy Act 1898 which, in its construction and usage did not apparently regard sexual intercourse between a man and a prostitute as an “immoral purpose”, does not easily sit with the terms of section 147(1)(a).

9. The interpretive approach of Crook v. Edmondson has little attraction when applied to section 147(1)(a), and in my view the proper construction of the ambit of the section is simply to give its terms their plain meaning so far as that is possible.  The section makes no distinction between male and female.  Given specific references to the gender of both offender and victim in other offence creating provisions of Part XII, that can only be intentional on the part of the legislature.  For that reason section 147(1)(a) must apply not only to a woman soliciting a man for an immoral purpose but equally to the solicitation of a woman by a man.  Ms Draycott however attempted to draw a distinction between a woman who was a prostitute and one who was not, in arguing that even if section 147(1)(a) applied to circumstances where a man solicited a woman for an immoral purpose, there was further dicta in Crook v. Edmondson which supported her argument that section 32, which she submitted was analogous if not identical to section 147(1)(a), did not apply to such a circumstance.  That dicta was contained in the dissenting judgment of Sachs LJ where he said in respect of the facts of that case :

“

… The essence of the case for the prosecution was that the defendant spoke in succession to two known common prostitutes in a street which they frequent in order to solicit for prostitution : there was no evidence of the defendant having approached anyone other than a common prostitute.  It is thus an inference that can and probably should be drawn that at the material time each woman was herself soliciting—offering herself for payment. …”

10. I do not think that passage can be authority for a principle of law that a woman who is a prostitute cannot be solicited for the purposes of section 147(1)(a).  It is quite clear in my view that Sachs LJ had in mind evidential difficulties which would have prevented proof that the defendant in that case was the person soliciting, rather than the prostitute.  Nor is there anything in the terms of section 147(1)(a) which would suggest that a prostitute was a category of person not capable of being solicited.  If the legislation had been intended not to apply to such a circumstance or any other circumstance, in other words that it was limited in its application to specific categories of persons either soliciting or being solicited, then it quite easily could have been drafted to say so.

11. I do not see any overriding policy consideration which would require such a construction of the otherwise unambiguous terms used.  If that is so then it cannot matter whether the woman solicited was or was not a prostitute and Ms Draycott’s further argument in this regard that the section would not apply to the circumstances in this case where the appellant believed PW1 to be a prostitute, falls away.

The second proposition

12. The second proposition of Ms Draycott is that the evidence was insufficient to establish the appellant solicited PW1.

13. The Shorter Oxford English Dictionary defines the word “solicit” in a number of ways.  The most apt of those definitions would appear to involve an individual seeking to obtain something or some response from another, or to persuade another to do something.

14. In my view to solicit someone for an immoral purpose within the terms of section 147(1)(a) would include enticing or persuading that person to do some act or thing, or seeking from them some response, so as to bring about an eventuality or state of affairs which is sexually immoral.

15. I agree that however the word “solicit” is defined, it does not, it seems to me, entail anything in the nature of the mere acceptance of another’s solicitation.  In other words, there is a distinction to be drawn between an individual who is soliciting and an individual who responds to that solicitation by doing some act or thing.

16. Ms Draycott’s argument in the present case was that, because PW1 was passing herself off as a prostitute, the appellant was simply responding to what he perceived to be a woman holding herself out as available for the purposes of prostitution.  In those circumstances, goes the argument, the appellant could not himself have solicited PW1 for the purpose of prostitution, as he was the solicitee.

17. I agree with that argument so far as it goes.  But this was purely a question of fact.  The magistrate accepted from the evidence of PW1 that the following conversation took place between her and the appellant :

“	D:	Waiting for someone?
	PW1:	What are you talking about?
	D:	Are you waiting for someone?
	PW1:	No.  What’s the matter?
	D:	How much?  Is $300 alright?
	PW1:	… (Did not respond).
	D:	$300 for a full set, OK?
	PW1:	What do you mean by the full set?
	D:	Full set: love making and oral sex.
	PW1:	Ok, let’s go.”

18. The magistrate then concluded :

“

… I am convinced beyond any reasonable doubt that the defendant did approach PW1 in a public place and in effect offered to pay money in return for her sexual favour.  At the time PW1 was dressed in a way no different from any Hong Kong woman of her age and she did not do anything to advertise or give rise to the impression that she was a prostitute.  The evidence when viewed as a whole could not be capable of suggesting that she was advertising or soliciting for immoral purposes.  Nor could I find any justification for any passer-by to mistake PW1 for a common prostitute.”

In arriving at that conclusion, the magistrate effectively found that the appellant was the person who had done the soliciting. 

19. He based that conclusion on his finding that there was no reason for the appellant to think PW1 was a prostitute.  With respect I do not think in arriving at that latter finding, he gave sufficient weight to one fundamental reality in the evidence; that is that PW1 was in fact standing on the street corner so as to pretend to be a prostitute and had agreed in her evidence that people would tend to think a young woman standing alone at that location at that time was a prostitute.

20. Nevertheless I do not think that matters.  It may well be that a prostitute can “solicit” for the purposes of section 147(1)(a) by simply standing in a particular location at a certain time : see HKSAR v. Cheung Kwan Kit (2002) 4 HKC 506 at 515 and Behrendt v. Burridge (1976) 63 Cr.App.R. 202 at 206.  But that does not mean that an individual who approached the woman and had a conversation or negotiation with her might not, in the course of that negotiation, in turn also solicit the woman for the purposes of prostitution.

21. Merely because one person, in this case PW1, by her actions initiates an approach by another by way of an original solicitation does not mean that other is thenceforth set in concrete as a “solicitee”.  It may well be that during the course of a conversation between them, or of a negotiation, the role of the other becomes that of a person soliciting.  That is particularly so given the broad meaning of the word “solicit”.  Each case no doubt depends on its own facts.

22. In this case the conversation which took place between PW1 and the appellant, which was accepted by the magistrate in the terms given by PW1 in evidence, involved the appellant offering a certain sum of money for specific sexual activities.  In my view by making such a clear and unambiguous offer he was soliciting PW1 for the purpose of prostitution.  There was no real suggestion before me that such a purpose could not be found to be immoral and I agree with the magistrate’s comment :

“

Immoral purpose must refer to some kind sexual activity. It is a matter for the tribunal of fact by applying the standards of the community : HKSAR v. Cheung Kwan Kit [2002] 4 HKC 506.  I take judicial notice that prostitution, i.e. exchange of money for sexual favour, is an act society in general (especially in a predominately Chinese community such as Hong Kong) considers immoral. …”

23. Essentially in this case, for whatever reason, the appellant approached and spoke to PW1.  Once he had entered into conversation with her, his offer of $300 for sexual services amounted to a solicitation.

24. On that simple basis, there was in my view nothing unfair or unsafe in this conviction and the appeal is dismissed.