HKSAR v. LAW WAI KON

[English Translation – 英譯本]

CACC 387/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 387 OF 2008

(ON APPEAL FROM DCCC 646 OF 2008)

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Between

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REASONS FOR JUDGMENT AND RULING ON COSTS

Hon Cheung JA (giving the reasons for judgment and ruling on costs of the Court):

1. The appellant was prosecuted for four charges, two of which (the 1^st and 3^rd charges) were “procuring another person to become a prostitute”, contrary to section 131(1)(a) of the Crime Ordinance (“the Ordinance”), Cap. 200.  There were two alternative charges of “trafficking in persons from Hong Kong” (the 2^nd and 4^th charges), contrary to section 129(1) of the Ordinance.

2. The case was tried before Deputy District Judge Wahab, who convicted the appellant after trial of two counts of “trafficking in persons from Hong Kong”, and sentenced him to three years’ imprisonment for each count, both sentences to run concurrently, making a total sentence of three years.  The appellant applied for leave to appeal against conviction and sentence.  We granted the application after hearing his case and treated the application for leave as the appeal proper.  We also quashed the two convictions but ordered a retrial of the 4^th charge.  The appellant was allowed bail pending retrial.  The reasons for our judgment are given below.

Facts

3. The facts show that the following advertisement was published in a Hong Kong newspaper between December 2006 and June 2007:

“Overseas short-term quick money.  Japan, Britain, Taiwan.  PR  Safe and confidential.  Can provide air tickets, board and lodging.  Good reputation for many years (telephone number)”.

4. The advertisement was brought to the knowledge of the Hong Kong Police, which suspected that prostitution was involved and therefore assigned two woman police officers, namely the 1^st prosecution witness (“PW1”) and the 2^nd prosecution witness (“PW2”) to carry out investigations.

The 2^nd charge

5. PW1 posed as a job applicant and telephoned a man surnamed Ho (“Mr Ho”) at the number provided in the advertisement.  Mr Ho explained to PW1 that the nature of the job was “PR”.  He told PW1 further that if she chose to go to Britain, she would have to pay for her own air ticket; however, if she chose to go to Japan, an air ticket would be provided to her.  The duration of the job would be three months, she could choose to go to Taiwan if she preferred a shorter duration, which would be fourteen days.  He added that working in Japan would be better rewarded and more comfortable when compared with working in other places.  He would charge PW1 a fee of approximately $10,000, which would be deducted from PW1’s job income.  Mr Ho said he would provide accommodation to PW1, and asked her what type of passport she was holding.  They then arranged to meet the following day, and Mr Ho also required PW1 to bring along her passport for him to look at.

6. On 12 January 2007, Mr Ho (who was identified as the appellant) and PW1 met in a Mongkok hotel.  Their conversations are summarized as follows:

(1)     The appellant said he would arrange jobs for PW1 in the bars of the Chiba prefecture in Tokyo, Japan, where she had to provide sex services to the customers.  The appellant also explained to PW1 details of her working hours and the fees that she would charge her customers.  He told PW1 that she could keep the extra tips given by customers, and her monthly income could reach several tens of thousand Hong Kong dollars.

(2)     The appellant would take PW1 to the airport, but she had to go through the customs herself.  He would give PW1 a small quantity of Japanese coins, so that she could make a telephone call to inform him about her safe arrival in Japan.  He would arrange other women to travel to Japan on the same flight with PW1, and someone would collect her at the Tokyo airport and take her to her quarters. After that, she could commence working in the bars immediately.

(3)     The appellant said PW1 could live in the quarters provided by the boss, but had to pay a monthly rental of $2,000.  He would charge PW1 $13,000 as “passage fee”, to be deducted from her income.  Her income would be kept by the Japanese boss first and given back to her later.  The appellant also said they needed a large number of women to work in Japan, most of them would come back to Hong Kong after finishing their jobs, but would return to Japan to work after taking some rest.  He said:

“will not force you … just like doing business … I make arrangements for you to go there, but will not charge you commission, that means the harder you work, the more money you make.”

(4)     The appellant said he could take PW1 to book an air ticket to Japan, but she had to pay the fee of $2,000 to $3,000 herself.  Alternatively, he could book an air ticket for PW1, but the fee would be $5,000.

7. During the meeting, the appellant showed PW1 a photo album, which contained photographs showing the airport in Japan, some bars and the quarters.

8. PW1 told the appellant that she needed some time to consider whether she would go to Japan to work.  The appellant telephoned PW1 on 13 July 2007 asking her whether she had made up her mind.  He said the Japanese boss was in need of workers, and if PW1 was in financial difficulties, he would ask the boss to provide her with a cheaper air ticket.  PW1 indicated that she was still considering it, as she would like to spend the New Year in Hong Kong.  The appellant told PW1 that if she went to Japan, she could earn and bring home more than one hundred thousand Hong Kong dollars.  PW1 has not contacted the appellant since then.

The 4^th Charge

9. Some time later, the police made arrangements for PW2 to contact the appellant.  PW2 dialed the telephone number provided in the advertisement on 12 March 2007, posing as a job applicant, and spoke to a Mr Ho.  PW2 asked Mr Ho if there were ways to make money, Mr Ho said “yes” and told PW2 that she could choose to go to Japan, Taiwan or Britain.  Mr Ho then suggested meeting PW2 the following day, as it was not convenient to go into any details over the telephone.  The appellant also asked PW2 what type of passport she was holding.

10. The following day, PW2 and the appellant met in a Mongkok hotel, the same hotel where the appellant had met PW1.  The appellant told PW2 in the meeting that the job she applied for was prostitution.  He suggested that PW2 could work in the bars in the Chiba prefecture, as she could earn a monthly income of several tens of thousand dollars there.  The appellant then explained to PW2 the charges of providing overnight services and the sex services she had to provide to her customers.  He also told PW2 to hand over the money she received from her customers to the Japanese boss, who would deduct $13,000 from it to pay for the appellant’s “passage fee”, and the rest of the money would belong to PW2.  The appellant told PW2 that she could earn $30,000 to $40,000 per month, and suggested that she gave her bank account number to the Japanese boss, so that he could transmit her wages to Hong Kong.  The appellant also told PW2 that the Japanese boss would provide her with quarters at a monthly rental of $2,000.

11. The appellant reminded PW2 to dress decently and not to bring any condoms and lubricants when she boarded the flight, because she would be prohibited from entering Japan if such items were found in her luggage by the Japanese immigration staff.  He also mentioned to PW2 the fees for booking air tickets and showed her a photo album containing photographs showing the airport in Japan, some bars and the quarters.

12. When PW2 telephoned the appellant on 30 May 2007, the appellant asked her whether she would like to work in Japan and suggested taking her to book an air ticket.  PW2 agreed and arranged to meet him in Mongkok.  After meeting up with the appellant, PW2 was taken to a travel agency, where she booked a round trip air ticket under a false name with the departure date of 12 June 2007, and the air ticket fare was paid by PW2.  As the air ticket could not be issued that day, the appellant promised to collect it and give it to PW2 before her departure.  He explained to PW2 details of her trip to Japan, and reminded her again that she had to dress decently on the day she departed for Japan.  The appellant added that he would provide her with contraceptive pills.  He told PW2 that the Japanese boss would charge her a fee of JPY 250,000, to be deducted from her income from receiving customers.

13. On the occasion when they met again on 11 June 2007, the appellant gave PW2 an air ticket and told her to phone him before she left for the airport, so that he could arrange for some Japanese staff to pick her up at the airport.  The appellant also gave PW2 a few Japanese coins and told her to telephone him upon her safe arrival in Japan.  He also gave PW2 a blister pack of contraceptive pills, a small phial containing contraceptive pills and a tube of lubricant, and advised her on how the aforesaid items should be stored to avoid detection.  He also supplied PW2 with some information about traveling in Japan and false telephone numbers and addresses in Japan, in case she would be interrogated by the Japanese immigration staff.

14. PW2 then gave signals to the police officers laying ambush in the vicinity, who approached the appellant and arrested him.

Defence

15. The appellant did not give evidence.  His counsel at trial put it to PW1 and PW2 during cross-examination that the appellant had never mentioned to them, either over the phone or in the meetings, that they had to provide sex services in Japan; nor had he given any contraceptive pills, lubricants etc to PW2, he merely recruited them to work illegally in Japan.

Decision of the trial judge

16. On 17 November 2007, upon hearing the prosecution’s evidence and the defence’s closing submission, Deputy District Judge Wahab found the appellant guilty of the two alternative charges.  The trial judge indicated that he would give a brief outline of his reasons for verdict first, and would “set out formally and in details” his reasons for verdict at a later stage.  The trial judge then went on to say that the crucial issue in this case was whether the two prosecution witnesses had spoken to the appellant over the phone or met him personally.  When and in what ways they contacted each other were side issues, the more important issue was what they talked about when they contacted with each other.  The trial judge found that the prosecution had already proved that the conversations between the appellant and PW1 and PW2 involved their working as prostitutes in Japan, and he accepted the two witnesses’ evidence.  The trial judge added that he had considered the fact that the appellant had no criminal conviction records, but nevertheless still accepted the two prosecution witnesses’ evidence.  Regarding the reason why the prosecution did not make a closing submission, the trial judge explained that it was because the appellant did not give evidence in his own defence.  The trial judge reiterated that he would first briefly outline his reasons for giving a guilty verdict, and the detailed reasons for verdict would be given and delivered in court on a later date.  Subsequently, the judge passed sentences after hearing mitigation from defence counsel.

17. The judge delivered the reasons for verdict and reasons for sentence in court on 28 November 2008.

Grounds of Appeal

18. Regarding the convictions on the 2^nd and 4^th charges, the appellant’s counsel at appeal Mr Richard Wong submitted that the procedures and results of the hearing are so seriously flawed as to render the convictions unsafe and unsatisfactory.  His reasons were that after hearing the case and after delivering his reasons for verdict and sentence, the trial judge had already fulfilled his duties and completed his task, he had no judicial power to deliver another set of reasons for verdict more than ten days later.  Mr Wong submitted that this court should not accept the reasons for verdict delivered on 28 November 2008, but should instead decide this appeal solely on the basis of the reasons for verdict given on 17 November 2008.  As the judge did not explain why he accepted the two witnesses’ evidence on 17 November 2008, hence this court could not decide whether the judge’s verdict was correct.

Section 80(1) of the District Court Ordinance

19. Section 80 of the District Court Ordinance (“the Ordinance”) (Cap 336) states:

“80(1)     The verdict and any sentence shall be delivered orally and be recorded in writing at the time of that delivery.

(2) The reasons for the verdict and any sentence -

(a) shall be delivered orally; and

(b) shall be reduced to writing within 21 days after the hearing or the trial,

and the reasons so reduced to writing shall be signed by the judge.”

20. The wording of the current section 80 is different from that of the section 80 before 1993, which reads:

“80.   Before pronouncing judgment, a judge shall record his verdict and,   at the same time or so soon thereafter as may be, shall also place on record a short statement of the reasons for the verdict.”

21. According to the current section 80(2), a District Judge needs not deliver the reasons for verdict on the same day as he delivers the verdict.  He can deliver the verdict first, and then fix a day for the delivery of the reasons for verdict and reduce them to writing.  However, the reasons for verdict must be reduced to writing within 21 days after the oral delivery.  The judge can of course deliver the verdict and the reasons for verdict on the same day, but section 80(2) forbids the delivery of two sets of reasons for verdict, one delivered immediately with the verdict and the other delivered some time later.

Authorities

22. The Court of Appeal has stated repeatedly on the basis of the old section 80 that a District Judge cannot provide more than one set of reasons for verdict.  In R. v. Hui Lap Keung and Others [1989] 1 HKLR 261, the District Judge convicted the defendant after trial and delivered the reasons for verdict.  The gist of the reasons for verdict was that the three main prosecution witnesses had in general given clear evidence, and their performance under cross-examination did not raise any doubts about their evidence.  The judge found that, on the basis of the prosecution witnesses’ evidence and the documentary evidence of the case, there was no reasonable doubt; and convicted the three defendants.  The judge subsequently handed down his reasons for verdict consisting of ten pages.

23. The Court of Appeal took the view that the judge should not deliver two sets of reasons for verdict; the best approach was for the judge to deliver the verdict and the reasons for verdict at the same time.  If the circumstances did not permit the judge to do so, he should deliver the verdict only.  As counsel for the appellant did not ask the Court of Appeal to disregard the written reasons for verdict consisting of ten pages, hence the Court of Appeal did not rule on this issue.

24. In R v. Law Chi Kong CACC 491 of 1987, the District Judge convicted the defendant after trial.  He said he convicted the defendant as charged on the basis of the evidence called.  Subsequently, the judge delivered another set of reasons for verdict.  The Court of Appeal took the view that the judge should not deliver two sets of reasons for verdict, and for this reason it did not consider the other set of reasons for verdict delivered by the judge after the conviction.

25. In The Queen v. Lam Kwok Hung [1989] 2 HKLR 184, the Court of Appeal described the trial judge’s delivery of two sets of reasons for verdict as  “improper procedure”.

Reasons for verdict

26. We do not accept the respondent’s view that the trial judge only delivered a verdict of guilty after trial, but not the reasons for verdict.  As noted in paragraph 16 of this Judgment, apart from delivering a verdict of guilty, the trial judge also delivered the reasons for verdict.  The trial judge said he would give his reasons for verdict in “two to three sentences” and “explained the conviction in two to three sentences”, and would formally deliver his detailed reasons for verdict on a later date. However, whichever ways one looks at it, what the judge delivered at that time were the reasons for verdict, although he was minded to give his detailed reasons for verdict on a later date.

27. For the above reasons, we would decide this appeal solely on the basis of the reasons for verdict delivered on 17 November 2008.  It is obvious that the trial judge did not specify in the relevant reasons for verdict why he accepted the two witnesses’ evidence.  In Oriental Daily Publisher Ltd v. Commissioner for Television and Entertainment Licensing Authority (1997-98) HKCFAR 279, Chief Justice Li states clearly that the court needs to provide well-grounded reasons for verdict.  The principles underlying the aforesaid requirement can be summarized as follows:

(1)     the giving of reasons is an incident of judicial office;

(2)     to enable an appellate court to do its duty in considering an appeal by a convicted person against such a decision;

(3)     to enable a convicted accused to make an informed and timely decision as to whether to exercise his right to appeal; and

(4)     to reflect the public interest in the open and due administration of criminal justice.

See: Bruce on Criminal Procedure Vol 1 paragraph VII [153].

28. In Zhuo Cui Hao v. Ting Fung Yee [1999] 3 HKC 634, the trial judge merely stated in her reasons for verdict that the appellant’s case was unbelievable, without specifying which parts were unbelievable and why she found it unbelievable.  The Court of Appeal set aside the verdict and ordered a retrial of the case.

29. We have to point out that not all the decisions which are not well-grounded will be set aside by the Court of Appeal. This depends on the complexity of the cases and the nature of the issues in dispute.  In a more simple case, the Court of Appeal may make its decision on the basis of the facts of the case.  However, the present case was not a simple one.  The audio transcript of the two witnesses’ evidence consists of approximately sixty pages.  The appellant’s counsel at trial cross-examined the two prosecution witnesses on the credibility of their evidence, and PW2’s evidence showed that she had failed to record in her note-book the contents of the conversation immediately after speaking with the appellant on the phone.  Furthermore, the trial judge had failed to deal with PW3’s evidence in his reasons for verdict delivered on 17 November 2007.  We were of the view that in the absence of any well-grounded reasons for verdict, we were unable to rule on the issue of whether it was proper for the trial judge to accept the two witnesses’ evidence.  As we considered that there were indeed material irregularities in this case, we allowed the appeal and quashed the conviction.

30. Senior Public Prosecutor Catherine Ko, who represented the respondent, asked this court to order a retrial of the 4^th charge.  She did not ask for a retrial of the 2^nd charge.  Counsel for the appellant Richard Wong opposed the retrial.  The reason for our quashing the conviction was not that the prosecution’s evidence was insufficient. Accordingly, though the appellant had already served about one year of the sentence, we held that, in the public interest, there must be a retrial on the 4^th charge.

Alternative charges

31. Apart from convicting the appellant on the 2^nd and 4^th alternative charges, the trial judge also ordered that the 1^st and 3^rd charges be placed on court file.  The appellant did not appeal against this decision.

32. In R v. Mackell [1982] 74 Cr. App R 27, it is ruled that the Court of Appeal only has jurisdiction to deal with appeals against conviction and sentence.  Since the appellant has not appealed against the way that the trial judge dealt with the 1^st and 3^rd charges, we do not have the jurisdiction to deal with this issue.  Nevertheless, we will take this opportunity to make the following comments: We are of the view that the trial judge, in ordering that the 1^st and 3^rd charges be placed on court file, indicated really that he was not making any orders on the two charges.  It is the usual approach in dealing with cases in which one of the charges is an alternative charge, so that the Court of Appeal can still convict the appellant on the alternative charge if it quashes the conviction on appeal; see R. v. Tsui Fung [1996] 1 HKCLR 107.

Costs Order

33. The appellant applied for costs in this appeal relating to the 2^nd charge. As we quashed the conviction on the 2^nd charge and only ordered a retrial of the 4^th charge, we considered that the appellant should have this set of costs.  Costs to be taxed by the Registrar.