HKSAR v. LAU CHI YUI AND ANOTHER

CACC 148/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 148 OF 2004

(ON APPEAL FROM DCCC 937 of 2003)

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 J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.  On 29 March 2004, the applicants (D1 and D3 aged 37 and 38 respectively) were convicted with Kwan Oi-chee (D2) following a trial before Deputy Judge Dufton in the District Court on a joint charge of trafficking in persons from Hong Kong, contrary to section 129 of the Crimes Ordinance, Cap. 200.  The particulars of this charge were that on 28 November 2000 they (with D2) took part in taking Cheung Ching-wa (PW1) out of Hong Kong for the purpose of prostitution.  There were three other similar charges with which we are not concerned on which acquittals were recorded.  On two of those charges, the witnesses (PW2 and PW3) had disappeared and, on the remaining charge, the witness (PW4) had to be treated as hostile.

2.  The applicants were each sentenced on 30 March 2004 to a term of three years’ imprisonment.  They now seek leave to appeal against conviction and sentence.

Prosecution’s case

3.  The prosecution’s case was relatively straightforward against both applicants.  It was alleged that they arranged for PW1, a girl who was then aged 16, to work in a karaoke establishment in Japan.  Before departure, PW1 was told that her duties in the karaoke bar would be to accompany customers whilst they were drinking.  However, as matters developed, PW1 was soon required to provide sexual services to customers of the karaoke establishment.  D1 arranged a visa for PW1 and introduced her to D2 and D3 saying that D2 would look after her in Japan.  D2 made the arrangements for the air tickets.  D2 and D3 accompanied PW1 on the plane to Tokyo and from there to Yokohama to meet the proprietress of the karaoke establishment.  In due course, PW1 had sexual intercourse with between twenty and thirty customers of the karaoke establishment before D1 instructed her to return to Hong Kong.  This was because of complaints to police which had been made by members of PW1’s family.

4.  The evidence called by the prosecution consisted of the evidence of PW1 together with the admitted facts.  The latter evidence dealt with the arrangements in respect of the air tickets for D2, D3 and PW1 which D2 had made and their departure to Japan on 28 November 2000, the details of the return of each of them from Japan to Hong Kong, the arrest of the applicants, and the identification parades.

Judge’s summary of the evidence

5.  PW1’s evidence at trial was the subject of a detailed and accurate summary by the trial judge.  Although the events relating to the charge occurred over three years before the trial, the judge was satisfied that PW1 had tried her best to recollect the events accurately and in so doing had given credible and reliable evidence.

6.  As the evidence against D1 and D3 was primarily circumstantial, and the reasons which the judge gave for convicting them are criticised, it is necessary to rehearse the facts of the case in some detail.  For this purpose, it suffices to set out the summary provided by the judge in his Reasons for Verdict which was as follows:

“PW1 – Miss CHEUNG Ching-wa

11.  PW1 met Dl in the No 1 pub in Kam Tin in July 2000 at a time when she was only 16.  Dl was the proprietor of the pub. PW1 would frequent the pub 2-3 nights per week. In November 2000 Dl asked PW1 if she would like to go to Japan to make money by accompanying persons to drink in a pub. PW1 declined the suggestion. Several days later D1 asked PW1 again and this time she agreed to go to Japan.

12.  D1 asked PW1 for her passport and birth certificate so a visa could be arranged with the Japanese consulate. PW1's birth certificate bore a cancelled chop because she had changed her name since birth from Cheung Yuk-wa to Cheung Ching-wa. PW1 testified when she received her birth certificate back from D1 she saw a photocopy, which was different to the original because there was no cancellation chop and the name had been changed to Cheung Ching-wa. D1 told PW1 that he had got someone to fix the matter so that the application procedures could be completed at the Japanese consulate.

13.  In November in the No 1 pub Dl introduced PW1 to a female called Ah Lam (D2).  It was mentioned that if PW1 were to go to Japan (D2) would look after her. (D2) said PW1 would go to work in Yokohama. PW1 said she did not see (D2) again before going to Japan.

14.  …

15.  PW1 went to the Japanese consulate but had no idea about what visa had been applied for. Mr Yip on behalf of D1 cross-examined PW1 about who went to the consulate with her. PW1 said Ah Fei (PW4), the alleged victim in charge 4, (D2) accompanied her and that it seems D1 did not go with her.

28th November 2000

16.  On the 28th November Dl drove PW1 and PW4 to the airport. In cross-examination by Mr Yip PW1 disagreed that Dl drove her to the airport at her request. At the airport Dl gave PW1 her passport, air ticket and boarding pass. D1 paid for the air ticket and visa. There was however no discussion as to repayment of these sums. In cross-examination by Mr Yip PW1 said that Dl told her he would fix the matters so she thought D1 had paid for the visa and air tickets. When put that D1 did not give her the boarding pass or passport she said she could not recall.

17.  When asked if she met (D2) at any stage PW1 replied that she met her at the airport in Japan when (D2) said she would go to a hotel first and then go to the pub the following day to work. In cross-examination by Mr Yip, PW1 agreed that after arriving at the Hong Kong airport together with Dl and PW4 she had tea with (D2), D3 and two other girls.

18.  … PW1 said she boarded the plane with PW4, saw the two females on the plane but did not see (D2) and D3.

Japan

19.  (D2) took PW1 and PW4 to a hotel m Tokyo. They stayed together in one room together with three other persons, D3 and two females. This was the first mention in PW1’s testimony of D3 and the two other females. PW1 testified she had seen D3 in Hong Kong but not the two females. D3 was introduced to her by Dl in the No 1 pub at the same time she was introduced to (D2).  D3 was present when it was discussed that (D2) would look after her in Japan but he did not participate in the conversation.

20.  In cross-examination on behalf of D3, Mr Ng referred PW1 to her third witness statement dated the 8th October 2001 made after she had identified D3 in an identification parade and in which she explained why she had not mentioned D3 in her earlier statements. PW1 confirmed as accurate the following statement she made to the police:

‘As to why I did not mention about this male in my previous statements it is because he in fact did not say anything to induce me to go to Japan for the purpose of prostitution. I only knew that this male is a friend of (D2).  That’s why all along I did not mention this male. And for this male he also took part together with (D2) and I to fly to Japan on the 28th November 2000 and at that time this male did not say anything but I believe this male was aware that I went to Japan for the purpose of prostitution.’

21.  …

22.  The following day (D2) and D3 took PW1 and PW4 to Yokohama to meet the proprietress of a karaoke. (D2) introduced PW1 to the proprietress. PW1 had no idea what was discussed between the proprietress and (D2).  There was no mention of what work PW1 would do and how much she would earn.

23.  PW1 did not herself speak to the proprietress. PW4 would translate what the proprietress said to her in Mandarin.  PW1 said she knew Mandarin and could understand most of what the proprietress said to her. When asked if she could understand without translation PW1 said a little bit.

24.  PW1 and PW4 then went to the proprietress’ home and after applying make up and changing clothes the proprietress took them to the karaoke to work. PW1 worked for several hours serving customers with wine and drinking with them. PW1 was not told about her salary and how much she would earn when drinking with customers. PW1 said she did not speak Japanese and could not communicate with the customers of the karaoke.

25.  In early December the proprietress talked to PW4 in Mandarin, a little bit of which PW1 could understand, that (D2) had taken away ¥1.6 million and that it had cost ¥800,000 each for introducing PW1 and PW4 to go to work in Japan. The proprietress said that if PW1 was just to accompany customers to drink alcohol the money could not be repaid in full. The proprietress asked PW1 and PW4 to receive customers and that for each customer ¥2500(0) could be repaid.

26.  In cross-examination by Mr Ng (on behalf of D3), PW1 was referred to her first witness statement dated the 4th February 2001and confirmed as accurate that she told the police it was on the 9^th December 2000 that she was asked to provide escort service, including sexual intercourse and that ¥25000 would be repaid for each customer.

27.  This conversation is hearsay. I will further address this when considering the submission made there is no admissible evidence to prove that PW1 offered her body for lewdness for reward.

28.  PW1 disagreed to receive customers but did not voice out her objection. Thereafter PW1 started having sexual intercourse with customers of the karaoke. At the end of cross-examination in answer to the court PW1 said she received between 20 and 30 customers.

29.  Dl telephoned PW1 twice whilst she was in Japan. The first call was after she had started having sexual intercourse with the customers of the karaoke.  D1 asked if business was good to which PW1 replied ‘so so’. Dl also asked if it was cold and told PW1 to put on more clothing.

30.  PW1 testified she saw (D2) and D3 at the proprietress’ home in December but could not recall when in December. PW1 said she had no idea why they visited the home. She said this was before the conversation with the proprietress about the ¥1.6 million but after she had begun having sex with customers. PW1 told (D2) and D3 that she was receiving customers. (D2) told her to behave herself (the Cantonese phrase ‘Gwai gwai di’).  After cross-examination in answer to the court PW1 said she understood this to mean to continue to do the work.

31.  When cross-examined by Mr Ng (on behalf of D3) about this visit PW1 said she had said something wrongly. Mr Ng asked PW1 what she would like to correct and PW1 said that after they had taken the ¥1.6 million they went to the proprietress’ home. After cross-examination I sought to clarify with PW1 what she had said wrongly. PW1 explained that after she was settled down in Japan (D2) and D3 returned to Hong Kong.  After PW1 had worked for about half a month to a month (D2) and D3 visited the proprietress’ home. It was on this occasion that she told (D2) about receiving customers.

32.  In cross-examination by Mr Ng (on behalf of D3), PW1 agreed that this visit to the proprietress’ home was not mentioned in any of her witness statements. PW1 explained that ‘Maybe it was just some small details and the statements were too long and it was not contained in the statements.’ Mr Ng suggested PW1 might have confused D3 with D1 because the only reference to the phrase ‘Gwai gwai di’ was in her second statement dated the 6th February 2001 when she was telling the police about D1 telephoning her in Japan. PW1 disagreed with this suggestion.

PW1’s return to Hong Kong

33.  The second telephone call made by D1 to PW1 was 2 days before PW1 returned to Hong Kong. D1 told PW1 that her family members had reported to the police and told her to return to Hong Kong immediately. D1 said that when she returned to Hong Kong she was not to mention his name to the police and that if the police asked whether she knew D1 to say she was not very familiar with him.

34.  …

35.  Before returning to Hong Kong the proprietress gave PW1 ¥100,000 for going back to Hong Kong as travelling expenses. PW1 did not receive any salary for her work in the karaoke.  The proprietress only gave her ¥30,000 as pocket money.”

Admitted facts

7.  The admitted facts confirmed that D2 and D3 had left the immigration counter in the departure hall inside Hong Kong International Airport on 28 November 2000 at more or less the same time as PW1 and PW4, as well as two other women (referred to as PW2 and PW3 although, by the time of trial, they had disappeared).  They all boarded the same flight to Japan using air tickets arranged by D2 through the same travel agent.  D2 and D3 returned to Hong Kong on 2 December 2000 and went through customs clearance at the same time.  D2 and D3 returned to Japan on 4 January 2001, taking the same flight from Hong Kong, and they returned to Hong Kong on 7 January 2001, again taking the same flight.  PW1 returned to Hong Kong on 3 February 2001 some weeks after PW2, PW3 and PW4 had returned to Hong Kong.  D1 was arrested on 1 November 2001 and D3’s arrest took place on 27 September 2001.  D1 was identified by PW1 on 12 November 2001.

Defence case

8.  The applicants elected not to give evidence or to call witnesses.  The case for the defence was presented on the basis that PW1 had not been taken to Japan for the purposes of prostitution and that it was the proprietress of the karaoke bar who, without the applicants’ knowledge, caused PW1 to work as a prostitute.  The judge dealt with this aspect of the case by saying:

“39.  I am satisfied that what PW1 was told by the proprietress through the interpretation of PW4 as to the reason why she was to receive customers is hearsay.  Furthermore although PW1 understood a little bit of what was said PW4 has not testified that she faithfully and accurately interpreted what the proprietress said. I disregard entirely the content of this conversation in reaching my verdict.

40.  The submission with respect however overlooks the fact that after this conversation PW1 had sexual intercourse with 20-30 customers of the karaoke as part of her work at the karaoke. I am satisfied so I am sure that this amounts to prostitution. I am satisfied so I am sure that on all the evidence the only inference to draw is that PW1 was taken out of Hong Kong for the purpose of prostitution. This was a young girl from Hong Kong who could not speak Japanese. To suggest that she went there simply to pour wine and drink with customers of the karaoke, customers she could not communicate with would be to abandon common sense.

41.  PW1 was never paid a salary. If this were proper employment she would be paid a regular salary.  PW1 was never told by anyone what her salary would be. Clearly she was taken complete advantage of.  Whilst working in the karaoke PW1 only received a small pittance of ¥30,000 pocket money.  The only other payment was ¥100,000 given as travelling expenses when PW1 was told she had to return to Hong Kong.

42.  I have carefully considered defence counsel submission that the acts of prostitution not starting for 10 days is inconsistent with the assertion PW1 was taken out of Hong Kong for the purpose of prostitution. The fact PW1 did not perform sexual intercourse with customers until 10 days after her arrival in Japan does not in any way cause me to doubt the real purpose she was taken to Japan was for prostitution.”

D1’s application on conviction

9.  Mr Bruce, SC, on D1’s behalf, having reminded us that there was no direct evidence of D1’s state of mind on the date of the alleged offence submitted, in a single ground of appeal, that the circumstantial evidence taken into account by the judge should not have included:

“… evidence of a component of a telephone call between the Applicant and (PW1) in which the Applicant invited (PW1) not to mention his  name to the police when she returned to Hong Kong.  The judge failed to examine in the context of this telephone call whether it was right to say that (was) indicative that the Applicant had, as the judge said, ‘something to hide’.  Before using it against the Applicant, the judge ought to have treated this evidence with considerable circumspection and in the same manner as other evidence of conduct on the part of an accused which occurs after the crime alleged against him (such as flight, lies and the like).”

10.  The complaint in this ground relates to PW1’s evidence about her telephone conversation with D1 on 1 February 2001 when she was asked to return to Hong Kong and told not to mention his name to the police.  Her testimony about this topic continued:

“If the police officer asked me whether I know him (D1) or not I should say I don’t — no, I should say I know him but not very familiar with him.  And if I was alright then I asked my friends to give him a phone call and relate the message to him”. 

11.  It is quite plain in the context that the telephone call could only have related to the fact that it was D1 who had been instrumental in sending PW1 to Japan when this was the only reason PW1 had come across him.  Any other reasons, as Mr Bruce accepted, would have been pure speculation although he said that D1’s words might have been spoken in panic or out of embarrassment.  No doubt it would have been a wiser course for the judge to have stated that he had ruled out other motives for D1’s post-offence conduct in this regard, but in reality the judge reached the only conclusion which was open to him on this aspect of the evidence.

12.  In any event, as Mr Reading, SC, on the respondent’s behalf, pointed out, the judge had already decided D1’s guilt on far more significant factors before he turned to the evidence concerning the telephone call.  The judge’s conclusions in respect of D1 were as follows:

“43.  I accept PW1’s evidence that Dl asked her to go to Japan to work; asked her for her passport and birth certificate to arrange the visa; introduced her to Ah Lam (D2) and D3 saying that (D2) would look after her in Japan; and drove her to the airport to catch the plane on the 28^th November 2000.

44.  I am satisfied so I am sure on this evidence the defendant participated in a joint venture the objective of which was to take PW1 to Japan for the purpose of prostitution. I am satisfied so I am sure on all the evidence that the only inference to draw is that in asking PW1 if she would like to go to Japan to earn money by accompanying customers to drink wine in a pub was merely an inducement to get PW1 to go to Japan when the real purpose was for her to become a prostitute.

45.  In addition when Dl called PW1 asking her to come back to Hong Kong immediately because a report had been made to the police D1 told PW1 not to mention his name to the police and if they asked about him she was to say she was not familiar with him. This is indicative that Dl had something to hide. ”

These considerations were entirely sensible and not open to realistic criticism.

D3’s application on conviction

13.  Mr McGowan, on D3’s behalf, argued that the judge’s determination that “D3’s presence alone was sufficient evidence that he trafficked PW1 out of Hong Kong” and that, even if there had been sufficient evidence to substantiate the charge based on his presence, the judge “erred in his decision that D3 was aware that the purpose of PW1’s departure from Hong Kong was to work as a prostitute i.e. that he had the necessary mens rea”.

14.  Taking the first submission, Mr McGowan argued that there was nothing in the evidence to suggest that D3 had played a “directing or controlling” part over PW1’s movements or her decision to go to Japan and, as to his second ground, he contended that there was no evidence as to D3’s knowledge on the date of the offence, 28 November 2000, that the purpose of PW1’s departure was for prostitution.

15.  However, these submissions were wholly unrealistic for the reasons eloquently set out by the judge who dealt with the argument raised at trial that merely because D3 accompanied PW1 to Japan he should not be convicted.  The judge said:

“51.  … This is not a case of mere or accidental presence. D2 was present at all material times. D3 was introduced to PW1 by D1 at the same time D2 was introduced to her and told she would look after her in Japan. D3 met PW1 together with D2 for tea at the Hong Kong airport; was on the same plane to Japan; accompanied PW1 to the hotel in Tokyo; stayed in the same room and the next day together with D2 took PW1 to Yokohama to meet the proprietress of the karaoke.

52.  I am satisfied so I am sure on all the evidence the only inference to draw is that D3 accompanied PW1 to Japan and to meet the proprietress of the karaoke thereby rendering assistance in taking PW1 out of Hong Kong. I am satisfied so I am sure on all the evidence the only inference to draw is that D3 knew the purpose PW1 was taken to Japan was for the purpose of prostitution.

53.  In addition I accept PW1’s evidence that D2 and D3 returned to the proprietress’ home when PW1 told her she was having sexual intercourse with customers and D2 told her to behave herself which she understood to mean to continue to do the work. I accept PW1’s explanation why this visit was omitted from her witness statement and that she has not confused this visit with a telephone call made by D1. This omission does not cause me to doubt her evidence.

54.  The admitted facts (exhibit P2) whilst not proving that D2 and D3 did visit the proprietress’ home does show that before PW1 returned to Hong Kong D2 and D3 both left Hong Kong on the 4th January 2001 by All Nippon Airways flight and returned together on the 7^th January 2001.

55.  In reaching my verdict I have carefully considered all the submissions of counsel for each defendant. I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions, which cause me to doubt PW1’s evidence and the findings I have made. I am satisfied so I am sure that the inferences I have drawn are, in the absence of any explanation from the defendants, the only inferences to draw (see the judgment of Lord Hoffmann in LI Defan v HKSAR (2002) 5 HKCFAR 320 at paragraph 32).”   

16.  The inferences drawn by the judge were overwhelming and the grounds which Mr McGowan raised had no merit.

Conclusion on conviction applications

17.  The applications of D1 and D3 in relation to conviction are dismissed.

Sentence

18.  On any view, the facts of this case reveal the serious exploitation of a girl (PW1) who was only 16 by two men who were well over twice her age when she was persuaded to go to Japan.  The purpose of her visit was plain enough and within a short time, PW1 was regularly providing sexual services to men who frequented the bar where she had been taken to “work”.  The judge imposed a sentence of three years’ imprisonment on each of the applicants and also upon D2.

19.  This court has laid down no tariffs for this kind of offence which carries a maximum sentence of ten years’ imprisonment.  Plainly, the circumstances to be considered will vary from case to case in any number of ways.

20.  Mr McGowan submitted that a three-year sentence was manifestly excessive and failed to reflect the differences in the criminal responsibility of D3 when his role is compared to the parts played by D1 and D2.

21.  He also complained that for D3, whose previous convictions were so long ago that the judge felt able to deal with him in effect as a person of clear record, a deterrent sentence was inappropriate.

22.  On the first of these grounds, Mr McGowan particularly emphasised that there was no suggestion that PW1 had been coerced into prostitution or that D3 was actually aware of her precise age.  In regard to his second ground, Mr McGowan submitted that D3 was the least culpable of the three involved in this joint venture.  Finally, on the third ground, Mr McGowan criticised the judge’s statement that “a deterrent sentence is required not only to deter the defendants but also to serve as a warning to others who might be tempted to commit the same type of offence” because, he suggested, there was nothing to indicate that D3 was likely to re-offend. 

23.  In our opinion, the judge was entirely justified in making no distinction between any of the defendants before him, all of whom played an important role in the smooth running of this unlawful operation.  Although he described D1 as having “initiated the venture”, this does not imply more than that D1 found a target for this venture and that this was his role in the joint enterprise.  D2 and D3 had different roles to play.  The sentence took into account an element of deterrence and, insofar as this was aimed at the deterrence of others, it was fully justified.  In our judgment, the sentence was appropriate but, in view of PW1’s age, it might well have been longer.

24.  This application is dismissed both in respect of D3 and also D1 on whose behalf Mr Bruce made no submission regarding sentence.