R. v. CHOW YUEN HAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 610 OF 1995

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J U D G M E N T

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1. The appellant was convicted after trial of loitering for soliciting for an immoral purpose, namely sexual intercourse at a price of $200. She now appeals against this conviction.

2. The evidence against her consists mainly of the evidence of the officer. He was in plainclothes and carrying out investigation in relation to vice activities at Un Chau Street. He was then in a private vehicle by the road side and he looked to the opposite side. He saw the appellant standing on the pavement. And she talked to male passers-by and there were some hand movements. The sum total of the evidence given by the officer was therefore this:

(1) The appellant was standing on the pavement.

(2) She was seen to have talked to 4 male passers-by.

(3) There were hand movements. I note they were not hand movements of the appellant only but hand movements between the appellant and the males.

(4) he appellant was seen on one occasion stretching down her low cut T-shirt.

(5) After having talked to the 4th man, she was seen to walk up, grab hold of the man's right hand and pull it onto her breast.

3. The officer also referred to certain matters which I must say could only be regarded as comments of his own and which I think the magistrate should not, as he quite rightly did not, take into consideration or attach any weight to.

4. The appellant give evidence. She said she was waiting for her boyfriend and there were some men coming to ask her how much and she ignored them. I do not think her evidence is very important as the learned magistrate had rejected her evidence. He said he found that the officer's evidence was clear and convincing and that he was a truthful and accurate witness.

5. The question in this case is : whether on the evidence of the officer, the irresistible inference is that the appellant was loitering for the purpose for an immoral purpose.

6. "Loitering" is moving around, wandering around or hanging around aimlessly. Here we have the appellant standing on the pavement. She might have talked to somebody else and there was some indication that she had walked up to some men. Even if that amounted to loitering, was she loitering for the purpose of soliciting for an immoral purpose ?

7. Counsel submitted that the Crown has to go further than what was adduced before the learned magistrate. Because of the way the charge was framed, the Crown has to prove that it was for the purpose of sexual intercourse at $200.

8. There is of course no evidence of the contents of any conversation between the appellant and any of these 4 men. I must say that the stretching down of her upper garment may or may not suggest anything immoral while putting a man's arm onto her breast can be regarded as indecent behaviour. All these might have caused some suspicions. However, in my opinion, this is not sufficient, in all the circumstances, to be the basis of an irresistible inference that she was there loitering "for the purpose of soliciting for an immoral purpose".

9. There is, I notice, no evidence that the place was frequented, for example, by prostitutes. Although I hasten to add that the officer was there of course carrying out investigation into some vice activities.

10. Having looked at all the evidence presented before the learned magistrate, even if the appellant's evidence was to be rejected, and I must say rightly rejected by the learned magistrate, I think the evidence adduced on behalf of the Crown fell short of establishing a case beyond reasonable doubt. I do not think the conviction can be regarded as safe or satisfactory. The appeal is allowed, the conviction is quashed and the sentence is set aside. As I have quashed the sentence, the one month's suspended sentence activated by the learned magistrate will have to go as well and the appellant is discharged.