HKSAR v. LAU CHIU YING

HCMA 1012/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1012 OF 2008

(ON APPEAL FROM TMCC 1768/2008)

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J U D G M E N T

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1.  This appellant was convicted after trial before Mr Stephen Smout, in the magistracy, of one charge of controlling another person for the purpose of prostitution, contrary to section 130(1)(b) of the Crimes Ordinance Cap. 201.  She was sentenced to nine months’ imprisonment.  She appealed against her conviction only.

2.  The charge arose from an anti-vice operation which culminated in a raid on 8 May 2008 when at around 1500 hrs, a police party entered a flat under an Authorisation in terms of section 152 of the Crimes Ordinance.  At the time they entered they found the Appellant on the premises and a Chinese female, Miss He Huaxiu, in one of the rooms with an undercover police officer, PW1, who had entered the premises at about 1440 hrs.  PW1 gave evidence that when he arrived at the premises he rang the doorbell and the appellant opened the door.  She asked him “Boss are you looking for Bing Bing?”  PW1 told the appellant that he had been to the premises before and had been greeted by ‘Sister Lo’.

3.  The appellant told PW1 that Sister Lo had left and that he could address her as ‘Sister Mui’.  At that time PW1 saw a young woman dressed only in a vest and underpants sitting on a sofa in the living room; she was later known to be Miss He.  The appellant said, “Try Bing Bing, she provides good service”.  PW1 understood ‘Bing Bing’ to be the young woman, because there was no one else on premises.

4.  He asked the appellant the price and was told, ‘$350, whole set’.  The appellant told him this included a blow job and lovemaking.  She asked him if he had ever tried “double flying” which he understood to mean two girls.  The appellant said to him, “One additional girl, charge you $600”.  She asked PW1 to enjoy the air conditioning first and took him into a room on the premises.

5.  Two minutes later the appellant returned to the room and said, “The other girl cannot come, try Bing Bing - she is very obedient”.  At this stage PW1, through the open door, could see Miss He still sitting on the sofa; she smiled at him and nodded at this suggestion.

6.  PW1 said “all right” and the appellant told the girl “treat the boss right”.  The girl went into PW1’s room, took off all her clothes and put a condom in a blue packet on the bed.  She invited PW1 to shower together with her.  He asked her to shower first and the girl went out to the toilet to do so.

7.  At this point PW1 made a telephone call to his Sergeant 47688 (PW2), using a prearranged code, “I will not go home for dinner tonight”, which was a signal to his colleagues, who were waiting close by, to come to the premises immediately.  PW2 confirmed that he received the coded call at about 1454 hrs.

8.  Miss He returned to the room and PW1 began to undress.  He heard someone say, “police, open the door”.  He opened the door to the room and saw PC 50198 (PW4).  He revealed his police identity to Miss He inside the room in front of PW4.  Later he revealed his police identity to the appellant in the living room in the presence of PC 58276 (PW3), the arresting officer and PW4.

9.  PW1, who was not from the same team as the raiding party, said that he was not required to do anything other than act as an undercover officer, so he took no part in the investigation which followed.  He left the premises on the instructions of Inspector Au (PW6) after about 40 minutes.  He estimated that his conversation with the appellant before he entered the room had lasted about five to 10 minutes.  Miss He had taken about five minutes to shower and his police colleagues had arrived within five minutes of his call.

10.  PW1 referred to an earlier (18April 2008) visit he had made to the same premises as an undercover officer, for the purpose of gathering intelligence.  On that occasion he entered a room with a girl before making an excuse and leaving without having received sexual services, although he paid $350 in marked money before leaving.  He had not been given any marked money for the raid of 8 May 2008, because previously advance payment had not been required and, in any event, the purpose of the raid on 8 May 2008 was to take arrest action.

11.  At the briefing which preceded his visit on 8 May 2008, PW1 had been instructed to see if a second girl could be arranged, because another colleague, also under cover, would come to the premises 15 minutes after he had entered, if he did not ring his Sergeant and give the coded signal.  For this reason he did not discourage the appellant’s suggestion about supplying a second girl.

12.  Sgt. 4786 (PW2) gave instructions initially that PW3 should arrest the appellant for managing a vice establishment, even though there was only one prostitute on the premises.  The charge was changed later on legal advice.  PW2 said he had seen the appellant at the premises when conducting a licence check on the 21 March 2008, but he confirmed that no illegal activity was taking place on that occasion.

13.  When the police party entered on 8 May 2008 Inspector Au produced an Authorization and asked the appellant who was the person in charge of the premises; she had told him that she was.  The Inspector confirmed that no money, marked or otherwise, was given to PW1 because the plan was that the operation would end in a raid.  PW4 gave evidence that when the appellant opened the door of the premises for PW4 and the Inspector she told them “Bing Bing is serving customers.  Come in and wait a second.”  He had then gone to the room and found PW1 with Miss He.

14.  Various officers gave evidence about the investigation that followed the arrest of the appellant.  A number of exhibits was seized.  After the appellant was arrested and cautioned by PW3 he asked her to take out all things on her person and she took a bunch of keys from her pocket and two mobile telephones from her handbag.  PW5, the exhibits officer, tested the keys which were for the flat premises and the ground floor gate.  A CCTV system was operating at the doorway of the premises and the appellant was escorted from the premises to witness its dismantling and seizure by the police as an exhibit.

15.  The investigation and seizure of exhibits at the premises lasted from 1530 hrs to 1730 hrs.  The police team then returned to the police station and gathered together to report to Inspector Au what they had done including discussing the time of the operation, of their entering and leaving the premises and of their return to the police station.

16.  Inspector Au confirmed that he supervised his subordinates throughout the operation.  He told the court that the post-recorded notebook entry (Exhibit D1) made by PW3 who dealt with the appellant was incorrect in two respects; first because it stated that PW1 had paid $350 to the appellant, when it was the prosecution case that although the appellant told PW1 the price of the services offered, that no money had been paid by PW1.  The second error, which PW3 confirmed in evidence, was that he had noted 1720 hrs as the time the post-record had been completed, when, correctly, it should have been 1920 hrs.  Counsel for the appellant seized on these errors as proof of a frame-up and as support for his suggestions to the witnesses that they had kept the appellant at the premises for much longer than they claimed to have done.

17.  It was clear that if the magistrate accepted the evidence of PW1, in particular, and, to a lesser extent, the evidence of the police as to the conversation with the appellant on entry, that the elements of the offence had been made out.  The appellant, who made no admissions on arrest, had exercised her right to silence and did not call any witnesses.  Her defence as advanced by her counsel was that she had been framed because the police had failed to obtain sufficient evidence for a charge of managing a vice-establishment.  Further the officers had not carried out their duties properly and collaborated to present a unified untrue version of events.

18.  PW1 was alleged to have disobeyed his instructions in that he had had intercourse with Miss He, and it was suggested that he had taken away with him a used condom, to prevent his sexual activity being discovered.  Counsel suggested to various officers that the appellant had been kept confined to a room while pressure was applied to her to make her confess.  Despite her alleged ill-treatment, the appellant had not succumbed, however, apart from saying she was the person in charge, as she made no admissions at the premises and declined to be interviewed later on.

19.  The appellant was represented at trial and also on appeal by Mr Sharmim K. Khattak who advanced 9 amended perfected grounds of appeal against conviction.  Some of these grounds overlapped and almost all of them had been canvassed in mind-numbing detail with the witnesses, who were cross-examined before the magistrate over a period of 5 days.

20.  Ground 1 alleged that after the operation the police had had a meeting to ensure that their evidence tallied and that they had created evidence which implicated the appellant.

21.  Ground 2 alleged that major discrepancies and inconsistencies in the evidence of the witnesses had not been resolved or dealt with.

22.  Ground 3 complained that only one of the seven officers had given evidence as to how the exhibits, the keys and the mobile telephones were seized from the appellant, although all of the officers should have seen the seizure.

23.  Ground 4 was a complaint that the magistrate failed to consider the possibility of a police frame-up against the appellant when they alleged she had referred to Bing Bing being a prostitute on opening the door.

24.  Ground 5 alleged that PW2 had read his witness statement without permission of the court to refresh his memory and that he had read the notebook entries and statements of his subordinate officers to ensure consistency.  The magistrate allegedly failed to consider the credibility of PW2 and the other police officers sufficiently.

25.  Ground 6 alleged that the magistrate failed to consider the credibility of PW1.

26.  Ground 7 complained that a number of inherent improbabilities existed which the magistrate had failed to consider.

27.  Ground 8 contended that there had been no direct conversation between the appellant and the young woman who had been arrested as a prostitute.  It was submitted that taking the prosecution case at its highest, the acts of the appellant did not amount to exercising control, direction, or influence over a prostitute.

28.  Ground 9 was a complaint that the operation of 8 May 2008 was against the Hong Kong Bill of Rights Ordinance, because intelligence collected previously on decoy operations could not be used as evidence for the operation on 8 May 2008.

29.  From the grounds of appeal and the written and oral submissions of appellant’s counsel this appeal could be viewed an attempt to rerun the trial as it was run initially in the magistracy.  Substantial criticism was made of the magistrate who, allegedly, failed to consider adequately the credibility of the witnesses, failed to consider also a number of inherent improbabilities and did not examine discrepancies in the evidence of the officers as to what happened after the arrest.

30.  I note first and dismiss as unmeritorious, Ground 9.  Defence counsel appeared to have misunderstood the purpose of intelligence gathering.  A reading of the transcript shows that the previous police visits were to gather intelligence, or were licence checks.  It was not material that was used as evidence to support the present charge.  The previous visits were referred to only for background information, information that explained to the court why the police raid proceeded and why it took the form it did on 8 May 2008.

31.  The intelligence gathered explained, for example, why PW1 was able to go directly to the flat without having to telephone ahead for permission to come up and also how it was known that money for services rendered was unlikely to be required to be paid in advance and thus no marked money was given to PW1.  The prosecution did not put forward this material as evidence in support of the present charge and neither did the magistrate treat it as such evidence.

32.  There was no need for the police to have an authorization or warrant for the previous visits or licence checks.  There was no evidence of a breach of the Bill of Rights, nor evidence of any unwarranted intrusion.  This ground must fail.

33.  Ground 8 contended that the elements of the offence had not been made out.  The magistrate had to be satisfied that the appellant was “exercising control, direction or influence” over a prostitute.  Those words had to be given their ordinary meaning by the magistrate and the evidence assessed in a commonsense manner, with a view to the purpose of the legislation.  If the magistrate accepted PW1 as a truthful witness there was ample evidence from which the magistrate could be sure that the appellant was controlling, directing or influencing Miss He.  The Magistrate accepted the evidence of PW1.  He did so after considering all the relevant material and after having had put before him the alleged errors and inconsistencies that Mr Khattak relied on.  This was a matter for the Magistrate who had seen and heard the witnesses to decide.

34.  Ground 4 alleged that the magistrate had failed to consider that the police framed the appellant for this offence, although from the tenor of the cross-examination throughout the trial, the magistrate could not have failed to realize that this was the central plank of the defence.  However the allegations of a frame-up were suggestions through cross-examination only, because no evidence to that effect was given by the appellant, or by anyone else on her behalf.  If the appellant had been framed as alleged and if, as Mr Khattak suggested, the police had collaborated to invent evidence, it appeared that they had not done a very efficient job, because Mr Khattak in his Grounds 2, 3 and 7 complained of what he said were unresolved discrepancies and improbabilities.  One might have expected that if the police were intending to frame the appellant they would have ensured that the supporting evidence matched what they were trying to portray and, further, that their oral evidence was coordinated to resolve any discrepancies or improbabilities.

35.  It was not for the magistrate to manufacture possible defences in the absence of any evidence advanced by the appellant, or other defence witnesses on her behalf.  Suggestions of a frame-up by dishonest collaboration were put to the prosecution witnesses in cross-examination; the magistrate had to assess those suggestions in the context of the responses given by the witnesses.  Having done so he was required to decide whether the witnesses were telling the truth about what happened at the premises and whether the burden of proof had been discharged by the prosecution.

36.  The magistrate in his Reasons for Verdict showed he was aware of various discrepancies.  The magistrate, having examined the alleged discrepancies on which Mr Khattak relied so heavily, concluded that they were in fact comparatively minor, and not such as would cause him to disbelieve the witnesses.

37.  The discrepancies related to a number of matters:

(1)  whether or not a criminal Authorisation was produced by the police;

(2)  whether or not the appellant had claimed to be the person in charge;

(3)  whether the doorbell had to be rung before prospective patrons were allowed entry;

(4)  reference to a licence check;

(5)  an incorrect time recorded in PW3’s notebook as to when the post recording of the arrest and caution had been completed;

(6)  whether the appellant was ever taken outside the premises before the police party quit the building;

(7)  whether the prostitute, Miss He a.k.a “Bing Bing” had been present when PW5 seized exhibits.

38.  Complaint was made about the quality of the evidence relating to the seizing of the keys to the premises and 2 mobile phones which were handed over by the appellant. PW3 described how the appellant took the keys from her pocket and the telephones from her handbag and gave them to him; he, in turn, gave them to PW5, the exhibits officer, for testing and custody.

39.  Counsel for the appellant submitted that it was highly suspicious that no one else had witnessed the seizure of those items and suggested that the items had been picked up from furniture in the living room.  However, although other officers had not witnessed the seizure of the keys, or did not know what was done with them thereafter, that did not detract from the evidence given by PW3 or PW5 who were accepted as truthful witnesses.  It is almost inevitable that in raids of this nature, officers who are assigned specific tasks will not always see, or notice what other officers are doing.

40.  There was no dispute that the post-recorded notebook entry contained errors, nor was there any attempt by the prosecution witnesses to conceal them.  The first error was that PW3 recorded that PW1 paid $350 to the appellant on 8 May 2008.  That was contrary to the evidence of PW1 who, although he asked and was told the price, did not pay, nor was he asked for any money, because it was never intended that this raid was to be anything other than an arresting raid.  That intention was confirmed by the Inspector, PW6.

41.  The second error was the noting of 1720 hrs, instead of 1920 hrs, as the time the post-recording finished.  The magistrate concluded, after hearing the relevant witnesses, that PW3 had made a genuine error in transposing the numbers of the 24-hour clock.  A reading of the notebook itself indicates that the incorrect time does not fit in with the time notations which precede and succeed it – which is supportive of the evidence that this was a genuine recording error.

42.  The alleged discrepancies and improbabilities in the prosecution evidence were canvassed before the magistrate and considered by him.  He concluded having seen the witnesses and having heard counsels’ submissions that none of those discrepancies or improbabilities was sufficiently serious to cast doubt on the prosecution case.  Where a number of police officers investigates a possible offence, there will be discrepancies of varying degrees of significance as to what was seen, heard, said and done between the evidence of one officer and another.

43.  Often that is accounted for because officers have different tasks or responsibilities.  Officers may have arrived at and remained on the scene for varying periods of time and have worked with one or more groups or teams.  They may have had multiple vantage points from which to view the events, or observe the behaviour of suspects.  The magistrate had all the matters drawn to his attention which might possibly have weakened the prosecution case.  He concluded that such discrepancies as existed were minor and that the witnesses were truthful in their account of what happened.

44.  As for the magistrate’s alleged failure to consider inherent improbabilities in the evidence, that was based on no more than a suggestion that not all the officers who had entered the premises had witnessed what each of the other officers did.  As each officer had been allotted specific duties it would have been highly improbable, not to say suspicious, if they had been able to say in detail what each of the others had done at any particular time.

45.  Another improbability was said to be the police failure to make arrests on previous visits to the premises; it being suggested that no arrests were made because the police were targeting the appellant who had not been present.  However, as the evidence of the Inspector in particular made clear, there had never been any intention to do other than gather intelligence on those occasions.  The Magistrate accepted that, as he was entitled to do.  In any event, what had happened on previous occasions was irrelevant except as background for the events of 8 May 2008.

46.  Ground 1 was an allegation that all the police officers after the operation attended a meeting with PW6, the Inspector and that they had “ironed out inconsistencies, compared time difference of each action, made efforts to achieve consistencies to the prejudice of the appellant and to create evidence to implicate the appellant.”

47.  Mr Khattak spent a great deal of time cross-examining the officers in an unsuccessful attempt to establish this ground.  Despite lengthy questioning about minute details, many of them of no, or little, importance which the witnesses reasonably could not be expected to remember, all that was achieved was confirmation that the officers had followed their usual practice of reporting to their Inspector and advising him of the times that were relevant to the operation.  There was no evidence of their having a joint discussion to decide what the facts should be.  Although the officers gave the times of the various activities as a group, each officer reported to the Inspector individually as to the duties he had carried out.

48.  Ground 5 was a complaint that while giving evidence, PW2 had read his witness statement to refresh his memory without seeking permission of the court and, further, that he had read all the notebook entries and statements of his subordinates to ensure consistency in their accounts.  PW2 did not deny that he had read his statement and agreed that he was wrong not to have asked the magistrate for permission to do.  This impropriety occurred because the trial, originally fixed for 1 day, had had to be adjourned part-heard.

49.  PW2 had been stopped in the middle of his evidence on 1 August 2008 and had continued on 26 August 2008.  Unsurprisingly on resumption of the trial he felt the need to refresh his memory, but, wrongly, omitted to ask the magistrate for permission to do so.  It is highly unlikely that the magistrate, given the circumstances, would have refused such permission.  However, PW2’s failure to ask permission could have no bearing on the quality of his evidence in the circumstances.  There was no suggestion, for example, that he had tried to rewrite his statement.  The magistrate was aware of the error and took it into account when considering the evidence.

50.  As for the complaint that PW2 read all the notebook entries and statements of subordinate officers, it should be noted that PW2 as the Sergeant of the team, would have been failing in his supervisory duty if at some stage he had not checked the notebook entries and statements of his subordinates.  Mr Khattak’s suggestion was that PW2 was ensuring consistency amongst the witnesses - if that had been his aim he clearly failed.

51.  This case was of a very common type in that a vice raid was carried out on premises after police intelligence, gathered some time earlier, pointed to the premises being used as a vice establishment.  The evidence was simple and straightforward and the most important witness was PWI, whose evidence was accepted by the Magistrate.

52.  The trial was fixed originally for 1 day, but due in large measure to lengthy, detailed, repetitive cross-examination by defence counsel, coupled with his request that all witnesses not called by the prosecution be tendered for cross-examination, the trial was extended to 5 days.

53.  During the trial the magistrate could not have failed to notice the discrepancies and improbabilities relied on by defence counsel as they were referred to at every opportunity.  Ultimately the magistrate had to decide whether these discrepancies were serious as defence counsel contended, or whether they were minor, of a type one might expect in almost any trial and which did not affect the credibility of the witness or witnesses.

54.  In his Statement of Findings the magistrate considered the evidentiary discrepancies and improbabilities pointed out and was satisfied that those that he was apprised of, or knew about through the evidence of the witnesses were minor and explicable.  He might not have dealt with them in a manner which satisfied defence counsel, but on reading his Statement of Findings and having read the 386 pages of the trial transcript I am of the view that he did deal with them properly and having done so accepted the evidence of the police officers.

55.  In The Queen and Kwong Wing-on & Another HCMA 574/1996 Stock J. commented on the practice (a practice that remains lamentably common) of counsel dissecting a transcript microscopically which will always uncover a discrepancy, a failure to answer a question, some inherent improbability or other, a piece of evidence not included in statements to the police and a myriad of bits and pieces upon which to build pages of grounds of appeal.

56.  He pointed out that in the real world and even with truthful witnesses, such discrepancies, improbabilities, and omissions will occur.  If they did not then the evidence would be attacked as being artificial or collusive.  In this case, absent any defence evidence, Mr Khattak was keen to impress on the court by myriad suggestions to the witnesses that his client had been framed and that they had conspired to manufacture evidence against her, yet at the same time (again without any evidence but through many suggestions) claimed that the evidence was concocted so clumsily or carelessly that major discrepancies arose between the evidence of one police officer and another.

“A magistrate is not expected to deal expressly with every comforting crumb to which the defence may be able to point.  A realistic attitude must be encouraged, and the approach to such attacks is to ask whether there have been material and significant discrepancies, improbabilities or omissions such as would lead or should lead a tribunal to doubt credibility on central facts.” [per Stock J. in Kwong Wing-on (supra)]

57.  The magistrate dealt with the salient points and concluded that the appellant was guilty.

58.  This appeal amounts to no more than an attempt to retry the case.  There is no merit in any of the grounds advanced and the appeal against conviction is dismissed.