HKSAR v. CHAN NGAI WING

HCMA415/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 415 OF 1999

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J U D G M E N T

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1. The Appellant, Chan Ngai Wing, was charged with one count of managing a vice establishment, contrary to section 139(1)(b) of the Crimes Ordinance, Cap.200, Laws of Hong Kong. He pleaded not guilty and the trial took a number of days to finish. At the end of the trial, the Appellant was convicted and sentenced to six months' imprisonment. A fine of $10,000 was also imposed. The Appellant sought to appeal against both the conviction and the sentence.

2. At the trial, the Appellant was represented by Mr Pun of Messrs. David Ravenscroft . In this appeal, Mr Kwok, Counsel, was instructed to argue against the conviction only. He informed this Court that if the appeal against conviction was unsuccessful, the Appellant would deal with the appeal on sentence in person. I had earlier dismissed the appeal on conviction. Having heard the Appellant regarding the sentence, I refused to interfere with the imprisonment term but I ordered that the fine be quashed.

3. Mr Kwok had raised two points in his grounds of appeal. The first was in relation to the record of interview which the learned Magistrate had ruled inadmissible without expressly stating the reasons. Mr Kwok argued, inter alia, that no reason was given as to why PW1, PC52601, was still a credible witness despite the ruling that he was not satisfied PP2 was taken voluntarily from the Appellant. The second point raised was that the Magistrate had wrongfully relied on hearsay evidence about the status of the man found in one of the rooms inside the premises.

4. At the trial of this case, the prosecution had called a total of five witnesses and two were police agents. Apparently the alternative procedure was adopted and the Appellant had given evidence both on the special and the general issues.

5. When submitting on the special issue, Solicitor for the Appellant had raised a number of points. Apart from attacking the general credibility of PW1, he stated that the most important point was that PW1 confirmed that he had never asked the Appellant whether he was willing to answer the questions. He then went on to invite the Court to find the record of interview was involuntary as there had been a breach of the rules and directions for the questioning of suspects and the taking of statements, particularly principle D.

6. The Magistrate then made the ruling that he was not satisfied beyond a reasonable doubt that the record was taken voluntarily and therefore he refused to admit it into evidence.

7. In the circumstances, I see nothing wrong for the Magistrate not to state the reasons as the trial was still in progress. After the ruling was given, the prosecution formally closed its case. Mr Pun made no submissions. Then the Appellant elected to give evidence. In convicting the Appellant, the Magistrate stated in his oral reasons that he found the prosecution witnesses to be honest and reliable witnesses and he accepted their evidence. He found that the various discrepancies in their testimonies did not affect their credibility. He also rejected the evidence of the Appellant.

8. Having seen and heard all the witnesses, the Magistrate was entitled to make findings on their credibility. Such findings also made it clear that the rejection of the record of interview was not based on the rejection of PW1 as a credible witness. It was related to the breach of the rules on the part of PW1 who had frankly admitted such a mishap.

9. Further, in his very carefully prepared Statement of Findings, the Magistrate had explained why he accepted the evidence of the prosecution witnesses. Although I consider that it would be a good practice to state the precise ground of rejecting the record of interview in the Statement of Findings, in the present case, the position was very clear even without such an express statement. I had read the authorities cited and considered the submissions made. However, I found there was no merit in this ground of appeal.

10. Regarding the second point raised by Counsel, it was in relation to the findings stated in paragraph 22 of the Statement of Findings, which read :

"I found that the Defendant was the person who received the police agents and introduced the girls to them. He also discussed the price and services with them. I also found from the police witnesses evidence that there was no one else on the premises apart from the Defendant, the girls, the police agents and a male customer when they entered the premises."

11. Counsel pointed out that both PW3 and PW4 had made the remark in their testimonies that in room 5, there was a customer and a prostitute inside. However, it was argued that there was no admissible evidence that this man was indeed a customer. In reply to this, Counsel for the Respondent argued that the Magistrate did not really rely on this part of the evidence to convict the Appellant. Paragraph 17 of the Statement of Findings was referred to in support of the contention. In any event, it was pointed that when the Appellant himself gave evidence, he described the man in room 5 to be a customer. The relevant part of the Appellant's evidence in this regard could be found at p.119 of the Bundle :

"Q: I also put it to you that on that day you greeted PW1 and 2 thereat, right?

A: I had never seen them as I had not arrived there to work on that day. When I arrived there to work three rooms were already occupied by the customers."

12. According to the Appellant himself, rooms 2 and 3 were occupied by the police agents and therefore the only conclusion that can be drawn was that the person in room 5 was also a customer. Having heard both Counsel on this particular matter and having considered the Statement of Findings as a whole, I find that there was also no substance on this ground. I find that the conviction was not unsafe or unsatisfactory and the conviction should stand.

13. In relation to the sentence, the Magistrate had stated clearly how he had arrived at the starting point of eight months and how he had reduced the sentence on account of the mitigating factors. He also explained why a suspended sentence would not be appropriate in the present case. I saw no reason to interfere with this sentence. However, the Magistrate also imposed a fine of $10,000. He had not given any reason for this. The Magistrate actually stated that the Appellant had suffered financial difficulties and so he was involved in the present kind of work. In view of such comments, the decision to impose a fine on top of the imprisonment seemed unjustifiable. I therefore allowed the appeal on the sentence to the extent that the order for the fine would be quashed.