HKSAR v. SZE WAI YING

[English Translation – 英譯本]

CACC 19/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 19 OF 2009

(ON APPEAL FROM DCCC NO. 648 OF 2008)

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JUDGMENT

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Hon Cheung JA (giving the judgment of the Court):

Charges

1. The applicant was charged with one count of procuring another person to become a prostitute, contrary to section 131(1)(a) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong.  At the same time, she was faced with an alternative charge, namely trafficking in persons from Hong Kong, contrary to section 129(1) of the Crimes Ordinance.

2. The case was heard by Deputy District Judge Anthony Yuen.  The applicant was found guilty of procuring another person to become a prostitute and was sentenced to 18 months imprisonment.  She now seeks leave to appeal against her conviction.  She had also applied for leave to appeal against her sentence, but she abandoned that application on 8 August 2009 and the Court dismissed that application on the same day.

Facts

3. The facts were that in March 2007, the following advertisement appeared  in a Hong Kong newspaper for a number of days:

‘Quick money to be earned overseas, plenty of countries for you to choose, can earn $100,000 every month, safe and reliable, food and accommodation provided, no commission required, please call 9239 9235.’

4. The second prosecution witness (PW2) was a police constable.  On 10 May 2007, she was instructed to carry out investigation in respect of this advertisement.  On 16 May 2007, PW2 posed as an applicant for the job and called the number in the advertisement.  A woman, who called herself ‘Maggie’, answered the call.  Judge Yuen stated the content of this telephone conversation in his Reasons for Verdict:

‘The woman said that the job was a job to work in a massage parlour in Australia, and she asked PW2 whether she had worked in a massage parlour before.  PW2 answered that she had not and said that she did not know how to massage, but the woman said, ‘You don’t need to know.  All you need to do is to knead him a few times and then the customer will go to bed with you’.  She also asked PW2 about her age and her figure.’

5. They also arranged to meet in a restaurant on the same day.  The applicant went there as arranged.  Judge Yuen stated in this Reasons for Verdict their conversation during that meeting:

‘… PW2 reiterated that she did not know how to massage.  The defendant said that she did not need to know how to massage because the customers just wanted to do it with her.  PW2 asked her whether the customers would do SM, and whether they would refuse to put on a condom.  She said that she did not want to serve customers from Hong Kong.  The defendant said that most of the customers were foreigners and people from China.  They did not play those games and they would do it one to one in the normal way.

7.     As far as pay is concerned, the defendant said that for each customer, 80 Australian dollars could be earned for half an hour and 100 Australian dollars for one hour.  The working hours were from 12 noon to 2 to 3 o’clock in the small hours.  If PW2 was willing to do this job, she had to pay 2,000 Australian dollars in advance as introduction fee, but this 2,000 dollars could be deducted subsequently from her pay.  PW2 asked her what she should do if she really wanted to go to Australia to work.  The defendant said that if PW2 really wanted to go there to work, she should inform her.  Then she would liaise with a travel agency, which would contact PW2 and arrange for her to bring money and travel documents to the travel agency for applying for visa and buying air ticket.  When it was done, PW2 would be informed to collect the air ticket.  The time required would be about 2 weeks.  After she got the air ticket, the defendant would be informed.  Then the defendant would inform the boss and later someone would pick her up at the airport in Australia.

8.     The defendant told PW2 that if she was a holder of HKSAR passport, she could stay in Australia for 3 weeks.  If she wanted to stay longer, she could leave the territory for a short while at the expiration of the stay period and then go there again.  In this way she could stay for 3 months more.  If 6 months were still not enough, the boss could arrange for a student visa for PW2, then she could stay there for 2 years.

9.     PW2 said that she wanted to think over it.  Then the meeting ended.  The whole meeting lasted for about 40 minutes.’

6. On 6 June 2007, PW2 telephoned the applicant again and told her that she decided to go to Australia to work, but at that time the applicant said that she was very busy and that she would contact PW2 later.

7. Several days later, PW2 and another police constable went to the applicant’s home and arrested her.

8. At the trial, the applicant elected not to give evidence and not to call any witness.

Findings made by Judge Yuen

9. One of the issues which Judge Yuen needed to consider at the trial was whether, as a result of the contents of the conversations between the applicant and PW2, the applicant believed or might have believed that PW2 herself was already a prostitute.  If she had such belief, she could not possibly commit the offence, because she could not procure a person who is already a prostitute to become a prostitute.  Judge Yuen found that there was no evidence in this case which showed that the applicant had such belief at the material time.  He did not accept that there was anything said in the conversations between the applicant and PW2 as a result of which the applicant believed or might have believed that PW2 was a prostitute.  Judge Yuen said that PW2 had never told the applicant what her occupation was, nor had she expressly or impliedly indicated that she was a prostitute.  The clearest response she made was only that she intimated that she was interested in the job introduced by the applicant.

Grounds of appeal

10. The ground of appeal put forward by the applicant is that Judge Yuen erred in refusing to accept that the applicant believed or might have believed that PW2 was a prostitute or was a woman who wanted to be a prostitute of her own free will, because the evidence as a whole supported the applicant’s holding this impression of PW2, and this is a reasonable and inescapable inference.  Furthermore, Judge Yuen failed to properly consider that the burden of proof was on the prosecution, and that they were obliged to prove that the applicant had the intention to procure a ‘good and decent woman’ to become a prostitute.

Respondent’s stance

11. Miss Yam, Senior Public Prosecutor, for the respondent, submits that the applicant did not give evidence at the trial and that there was no evidence which demonstrates that because PW2 did not show any surprise or unwillingness when she heard the applicant’s explanation and because she arranged with her to meet her, the applicant believed that PW2 was already a prostitute. Miss Yam does not think that PW2 would deliberately make the applicant believe that she was familiar with the operation of immoral transactions.  Miss Yam submits that PW2 did not need to do so and if she had really done so, the applicant would not have to tell her further that ‘she did not need to know how to massage because the customers just wanted to do it with her’, and that ‘most of the customers were foreigners and people from China.  They did not play those games and they would do it one to one in the normal way’.

Legal principle

12. The legal principle applicable to the offence is that if a person is already a prostitute, she cannot be procured to become one.  She is willing to provide sexual services because she is a prostitute herself, not because she has been procured by someone to become a prostitute to do so.  Therefore, if the defendant believed or might have believed the person in question was a prostitute, he could not procure that person to become a prostitute; the reason is that he did not have the intention to procure a person who was not a prostitute to become a prostitute.  (see: Hong Kong Archbold 2009, paragraph 21-205, and R v Brown (RA) 80 Cr App R 36).

The opinion of this Court

13. The question whether the applicant believed or might have believed that PW2 was a prostitute must be determined from the evidence as a whole.  The applicant could have elected to give evidence to explain what she understood to be the case.  But even if she elected to exercise her right of silence and did not give evidence, the prosecution was still required to prove that at the material time the applicant did not believe or it was not possible for the applicant to believe that PW2 was already a prostitute.  Conversely, even if the applicant elected to give evidence and claimed that she believed or might have believed that PW2 was a prostitute, but if the evidence as a whole did not support her defence, the Court was not obliged to accept her evidence.

14. According to the circumstances of this case: First, even if the content of the advertisement contained some implications of immoral transactions, this does not mean that an applicant for the job must be a prostitute.  Furthermore, this Court does not consider that the applicant would inevitably believe or might have believed that whoever responded to the advertisement and applied for the job must be a prostitute.  Looking at the content of the first telephone conversation between PW2 and the applicant in isolation, we do not consider that as a result of this conversation the applicant would inevitably believe or might have believed that PW2 was a prostitute.  However, we find that it was possible to give the applicant such an impression by the combined effect of this conversation and the conversation between the two of them when they met that day, because during their first telephone conversation when PW2 learned that the job would require her to provide sexual services to customers, she did not show any surprise or unwillingness, nor did she indicate that she did not want to do such kind of work; she even arranged to meet the applicant.  When they met, although PW2 by then clearly knew that the job she applied for required her to provide sexual services to customers, not only did she not say that she had no experience in this field, she even asked the applicant ‘whether the customers would do SM’ and ‘whether they would refuse to put on a condom’.  She also said that she did not want to serve customers from Hong Kong.  All these were activities which could actually take place in a sexual transaction.  This Court cannot exclude the consideration that an applicant who was not a prostitute would be unlikely to say so explicitly that kind of sexual activity she did not want to take part in and that she unlikely would be so concerned about the nationality of the customers.  Judging from the contents of these conversations, it is possible that the applicant believed that PW2 was a prostitute, particularly because PW2 asked the applicant about the kind of sexual activity which she would carry out with customers after she arrived in Australia.  This point can at least show that the prosecution failed to prove beyond reasonable doubt that the applicant could not possibly believe that PW2 was a prostitute.

15. For the above reasons, we find that the prosecution failed to prove beyond reasonable doubt that the applicant committed this offence, and therefore we will grant leave to appeal.  We will treat the application as the appeal proper, allow the appeal and quash the conviction.

Alternative charge

16. Because the offence is not established, we need to consider the alternative charge.  Judge Yuen found that if there was evidence showing that the applicant had actually participated in arranging for another person to leave Hong Kong for the purpose of prostitution, then even though that person finally did not leave Hong Kong, the charge against the applicant was established.

17. Judge Yuen was of the view that the role of the applicant was to recruit women who were interested in going abroad to work as prostitutes, while other work was basically done by the travel agency  and people working overseas.  He found that although PW2 had not yet given a firm reply as to whether she would take up the job so that the applicant had not made any arrangement for PW2 to go to the travel agency to go through the formalities, the applicant’s acts constituted an important part of the elements of taking another person out of Hong Kong for the purpose of prostitution.  If PW2 had agreed to take up the job, other procedures would have been carried out as a matter of course.  At this point, the applicant had essentially done her work.  But since Judge Yuen had found the applicant guilty of procuring another person to be a prostitute, he did not give a decision on the alternative charge.

Issue

18. In this appeal, the issue concerning this charge is whether the victim has to be brought into or taken out of Hong Kong before a complete offence can be committed.

19. The view of Mr. Ma, counsel for the applicant, is that the victim must have left or entered Hong Kong before this charge can be made out.  He relied on sections 57 and 59 of the Sexual Offences Act 2003 of the United Kingdom, the contents of which are:

‘57.      Trafficking into the UK for sexual exploitation

(1)        A person commits an offence if he intentionally arranges or facilitates the arrival in the United Kingdom of another person (B) and either —

(a)    he intends to do anything to or in respect of [B], after B’s arrival but in any part of the world, which if done will involve the commission of a relevant offence, or

(b)    he believes that another person is likely to do something to or in respect of B, after B’s arrival but in any part of the world, which if done will involve the commission of a relevant offence.’

‘59.      Trafficking out of the UK for sexual exploitation

(1)        A person commits an offence if he intentionally arranges or facilitates the departure from the United Kingdom of another person (B) and either —

(a)    he intends to do anything to or in respect of B, after B’s departure but in any part of the world, which if done will involve the commission of a relevant offence, or

(b)    he believes that another person is likely to do something to or in respect of B, after B’s departure but in any part of the world, which if done will involve the commission of a relevant offence.’

20. According to paragraph 104 (section 57) and paragraph 110 (section 59) of the Explanatory Notes in respect of this statute issued by the English Home Office, these offenses can be committed only when the victim has entered U.K. territory or has left U.K. territory.  Mr. Ma did not cite any decision of the English Courts on these sections.  Mr. Ma submitted that according to his research, no Hong Kong case has ever discussed this issue, but in the following cases: HKSAR v. Chiu Kwok Ho（趙國豪）CACC 178/2003, HKSAR v. Lau Chi Yui（劉致睿）and another CACC 148/2004, HKSAR v. Yee Yiu-Sam CACC 530/2001, R v Wong Fu Keung CACC 158/1996, R v Chan Wing Lung and another CACC 250/1991, R v Li Lik CACC 50/1990, R v Soonthorn Chookiat Pravit CACC 301/1991 and HKSAR v. Pang Man Wai（彭文偉）and another CACC 250/2007, all the victims had been brought into Hong Kong.  Moreover, in Chiu Kwok Ho the trial judge took the view that the offence was complete once the victim was brought into Hong Kong.

21. Miss Yam does not agree with Mr. Ma’s view.  She submitted that the offence in question is directed at the process in which a person is taken out of Hong Kong, not the acts of taking a person out of Hong Kong.  She said that to take a person out of Hong Kong for the purpose of prostitution necessarily involves a series of steps.  The purpose of the offence is obviously to prohibit any person from carrying out any of these steps, whether or not any person has actually been taken out of Hong Kong finally.

Content of section 129

22. The content of section 129 of the Crimes Ordinance is:

‘129.    Trafficking in persons to or from Hong Kong

(1) A person who takes part in bringing another person into, or taking another person out of, Hong Kong for the purpose of prostitution shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 10 years.

(2) It shall not be a defence to a charge under this section to prove that the other person consented to being brought into or taken out of Hong Kong whether or not she or he knew it was for the purpose of prostitution or that she or he received any advantage therefor.’

The opinion of this Court

23. The wording of section 129(1) is different from that of sections 57 and 59 of the Sexual Offences Act of the U.K.  We therefore must construe section 129(1) on the basis of its own wording.  We consider that the phrase ‘A person who takes part in bringing another person into, or taking another person out of, Hong Kong’ has a broad meaning.  The section does not provide that the person who intends to engage in prostitution must have been actually brought into or taken out of Hong Kong.  It targets the people who take part in such a scheme and its purpose is obviously to attack illegal trafficking in people engaging in prostitution to or from Hong Kong.  The purpose of this provision will be seriously weakened if the offence is restricted to the stage when the people engaging in prostitution having actually entered or left Hong Kong.  We do not think that there is anything unclear or equivocal in the wording of section 129(1) which necessitates giving the benefit of the doubt to the applicant.

24. Having said that, we are also of the view that this offence requires the prosecution to prove that the offender has made substantial and specific arrangements for bringing the person who is to engage in prostitution into Hong Kong or taking that person out of Hong Kong.  Many steps have to be taken in order to bring a person into or take a person out of Hong Kong for the purpose of prostitution: First, to recruit a person who is willing to become a prostitute; second, to make arrangements for this person to leave or enter the territory, for example, buy air tickets, apply for visa, liaise with members of the gang who work in the foreign territory and meet the person at the Hong Kong airport or the foreign airport.  These steps can be carried out by different people.  If the person who is to engage in prostitution has actually been brought into or taken out of Hong Kong, the people concerned certainly have taken part in the arrangements for ‘bringing another person into, or taking another person out of’ Hong Kong.  If that stage has not yet been reached, the Court will consider the extent to which  arrangements for carrying out the scheme have been made in order to decide whether the offence has been committed.  For instance, if the person who agrees to engage in prostitution has been brought to the airport or the border and all that remains to be done is for her to board the aeroplane or go through the border checkpoint in order to enter or leave Hong Kong, we think that under these circumstances, the requirements of this offence are satisfied, because substantial and specific arrangements have been made for bringing the person into or taking the person out of Hong Kong.

25. In this case, the role of the applicant was to recruit people who want to go overseas as prostitutes , but she was arrested before she or other people taking part in this illegal scheme have taken any further action to arrange for PW2 to leave Hong Kong.  The applicant is not charged with conspiracy to traffick in persons to or from Hong Kong for the purpose of prostitution, and there is no evidence which shows that the applicant or other people have made any substantial and specific arrangements for taking PW2 out of Hong Kong.  In these circumstances, we do not think that the offence has been committed.  For the above reasons, we find that the alternative charge is not proved.