R. v. IP SAU MING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.1204 of 1996

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J U D G M E N T

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1. An undercover police agent PW1 went to Room 1509 of Hotel Nikko and made a phone call to a man called Ip who told him that underage girls were available for prostitution at a price of $1,500. The witness gave Ip his room number. Some 35 minutes later the appellant came to the witness' room and identified himself as Ip with whom the witness had had conversation over the phone. The appellant told the witness he came up to ensure it was not a police operation and that for $1,500 the girl would play with the witness for one hour including making love with the witness. After the appellant left, a girl PW2 came to the room and she took $1,500 from PW1 and took off her clothes. The appellant was arrested by another police officer at the entrance to the hotel.

2. PW2 told the magistrate that she was 16 years old and was introduced to the appellant by her ex-boyfriend so that the appellant could bring her to customers for prosecution. The appellant would take her to the home or hotel to meet the customers. She told the magistrate that she would receive $1,500 from a customer for what she did and the money would be shared equally among herself, her boyfriend and the appellant. She told the magistrate that on that night she went to Nikko Hotel with the appellant and after the appellant had gone up to the room and returned, the appellant told her to go up to the room and collect $1,500 from the customer there for her service. At the room she found PW1 and collected $1,500 from him.

3. The appellant told the magistrate that he knew PW2 and on the night in question, he met PW2 by chance. He was then told over his portable phone to take PW2 to Nikko Hotel. He was also told over the phone to go to the hotel to have a talk with a Japanese. He then took PW2 to the hotel but he went up first as requested by PW2 to the room to look for the Japanese. When he entered the room he saw some speaking in Japanese and English. He then went downstairs to tell PW2 to go up herself. Then he was arrested.

4. The appellant made two complaints : firstly, PW2 told lies to the police and secondly, there was insufficient evidence to show that he had accepted money earned by PW2 in prosecution.

5. PW2 admitted in evidence that she told a lie to the police in her statements recorded at the police station stating that was the first time she was engaged in prosecution and that she could not locate her ex-boyfriend who introduced her to the appellant. She gave an explanation to the magistrate for such discrepancies between her evidence and her previous police statements. The explanation was primarily that when she gave the statement she was with her mother and she did not want her mother to know the truth. The magistrate was aware of her discrepancies but nevertheless accepted her evidence. It is implicit from that that the magistrate accepted her explanation. He found her evidence reliable. He also accepted the evidence of PW1.

6. The magistrate found that on the evidence he accepted the presumption under s.137(2) of the Crimes Ordinance, Cap.200 had been invoked in that it was established that the appellant had control over PW2 for prosecution and therefore presumed to be living on earnings of prosecution. The magistrate found that this presumption had not been rebutted by the appellant whose evidence he rejected.

7. On the evidence before him, the magistrate was entitled to convict the appellant on the offence charge. The conviction cannot be regarded as unsafe and unsatisfactory. The appeal against conviction is dismissed.