R. v. HA HAU KWAN FONG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.444 of 1996

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REASONS FOR JUDGMENT

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1. The Appellant was convicted after a trial of three offences of knowingly living wholly or in part on the earnings of prostitution, contrary to s.137(1) of the Crimes Ordinance. She now appealed against convictions. After hearing submissions by Counsel for the Appellant and Counsel for the Crown, the appeal was dismissed with reasons to be given later. I now give my reasons.

2. There are two grounds of appeal. The first complaint is that the magistrate failed to make a finding that the $1,500 was earnings of prostitution and the money so paid to the Appellant could not in law amount to earnings of prostitution. The second complaint is that the magistrate indicated his disbelief of a defence witness during her testimony. The convictions are unsafe and unsatisfactory.

3. On 10th October 1995, as part of a police undercover operation, the Appellant who worked in a sauna was telephoned by one of five police officers involved in the exercise to go to the JJ Disco in Wanchai. When she arrived there, she spoke to the officers and later she agreed to arrange three women to go to the disco who would later in return for money provide service to three of the officers, such service included sexual intercourse. The agreed price was $2,000 for each woman and in addition, the Appellant would be paid a fee for the arrangement. The Appellant left the disco for a short time and soon after, three women duly arrived and they went away with three officers to a hotel where they performed services in the nature of prostitution. After they left, the Appellant told the remaining officers she could provide more girls for them, if not on that occasion, the "next time". The Appellant then said "I usually charged $500 per girl when I introduce them to people". She later confirmed she wanted $1,500 for the arrangement she had made and she was given $1,500.

4. The Appellant's case was she was one of the women who were prepared to prostitute themselves and she did not make the arrangement nor did she receive reward for the women to come. She was there to provide sex but the officer who was with her made it clear that no sex was wanted. Following that, she insisted to be paid for the time she was required to leave her work in the sauna. After some struggling, she accepted $1,500.

5. The magistrate found the Appellant had come to the disco and had agreed with the officers that for arranging girls to come to provide services including sexual intercourse to the officers, they would pay her tea money in addition to the payments to the girls. These girls duly came and subsequently performed sex services to the officers.

6. The magistrate found the Appellant was paid $1,500 for providing the prostitutes to the officers. He found that this was a significant amount. In his written verdict, he dealt with what would be sufficient to found a charge of this nature and he said :

"What needs to be shown in all cases is that the defendant lived, at least in part, on the earnings of another or others of prostitution. This is not the same as saying there must be a finding that it is the defendant's sole means of livelihood. In short, there must be a finding in support of the defendant's livelihood in a material way. That somebody did more than once should, therefore, be material rather than inconsequential. I do not agree with Mr Cosgrove that it should be substantial. As importantly if not more so, there must be evidence that the incident proved was not a one off incident. It must be proved that it was the practice of the defendant to live off the prostitution of others."

7. The magistrate in conclusion said :

"It is clear from these findings that the defendant was in the business of providing prostitutes for customers, that it was not a one off proposition. The inference is escapable. The defendant is found guilty of each of the offences charged ..."

8. Immediately following the Appellant's convictions by the magistrate there was a review. There was some exchange by the magistrate with Counsel for the Appellant at the trial who submitted that there must be clear proof that in some way the Appellant was benefitting substantially from earnings of prostitution. The magistrate clarified what he said in his verdict in relation to the amount of $1,500 in the following terms :

"... In my judgment I was referring to the amounts - the amounts, I don't think, in fact, that there's a great deal of difference between the term 'substantial amounts' and material amounts or substantial sums and 'material sums'. I think it's a matter of degree. If a person benefits to the extent of $1,500 I would say that was material. I would say it was substantial, as opposed to de minimis or inconsequential."

9. In his statement of finding, the magistrate added at the end of it the following :

"I also find that the defendant was benefitting substantially from the earnings of prostitution and I conclude that she was living at least partly on the earnings of prostitution."

10. It is more than clear that the magistrate had considered whether the receipt of $1,500 by the Appellant was sufficient for him to conclude that the Appellant was benefitting substantially or at least partly living on the earnings of prostitution and he came to the conclusion that the Appellant did so. Counsel for the Appellant, Mr Tse, submitted that the magistrate applied the wrong test in arriving at that conclusion when the magistrate stated that the Appellant was in the business of providing prostitutes for customers, and that was equivalent to applying the test of "trading in prostitution" in Calvert v. Mayes [1954]1 QB 342 which was not favoured in R. v. Ansell [1975]1 QB 215. It might have been unfortunate that clearer words than these : "in the business of providing prostitutes for customers" were not used. However, this finding of the Appellant's activities was not inconsistent with the Appellant's practice of arranging for gain prostitutes for those who called upon her to provide. Reading the magistrate's verdict and statement of findings as a whole, the magistrate was not applying the test of "trading in prostitutes".

11. Mr Tse for the Appellant submitted that such payment could not be earnings of prostitution. He relied essentially onR. v. Ansell [1975]1 QB 2151. In this case the defendant placed advertisements offering to introduce men to prostitutes. When readers answered the advertisements, the defendant would for a fee supplied the names and addresses of prostitutes. The prostitutes were unaware of this service and no money was passed between them and the defendant. The fee was for the introduction of prostitutes and was always paid before any contact with a prostitute was made. Roskill L.J. in considering what correct direction a judge would have to give to the jury in such a case said this :

"... We think that on the authorities he must have told the jury that while the fact that the money came from the men and not from the women did not in law prevent this money being the earnings of prostitution, before they could hold that it was, its receipt must be shown to be so closely connected with the exercise by the defendant of direction, influence or control over the movements of prostitutes that it could clearly and fairly be said to be the earnings of prostitution."

12. In Calvert v. Mayes [1954]1 QB 342 the defendant was habitually in the company of prostitutes exercise direction and influence over their movements and generally aided and abetted their prostitution and allowed the prostitutes to use his house for that purpose while the men paid him for the use of his house. He received nothing from the prostitutes. He was held to be living on the earnings of prostitution. Lord Goddard C.J. said :

"In the circumstances, it seems to me clear that this man was trading in prostitution. He was living on the earnings of prostitutes because they were earning money which otherwise he would have been paid."

13. Applying these tests, the facts as found support the magistrate's inescapable conclusion that the Appellant was living on earnings of prostitution. The Appellant was in a position to call to the disco the prostitutes; she was able to name the price for the girls' service; when the girls did come, the Appellant ensured that the officers were satisfied with them and presumably she would change them if the officers were not satisfied; she was able to arrange for more girls to come if necessary. The Appellant was paid the money for such arrangements, such money would not have been paid but for the prostitution activities. Clearly the Appellant was able to influence the prostitutes and direct their movements and the receipt of the money was closely connected with such activities. But for the prostitution of the prostitutes, the Appellant would not have received the money. The facts as found supported the magistrate's conclusion.

14. The next complaint turns on the exchange between the magistrate and the witness of the defence and Counsel for the Appellant while the witness was giving evidence. The magistrate asked the witness if she had previously made a statement to the police to which the witness said she forgot if she did. The magistrate responded "It's Okay if she did not wish to answer." and later on during exchange with Counsel, the magistrate remarked that the interpretation he put to that was the witness refused to answer. Counsel for the Appellant submitted that this showed that the magistrate was bias or had prematurely formed an opinion that the witness was unreliable and dishonest. Mr Bruce for the Crown submitted that this was a long way from saying that the magistrate then and there and from that point on disbelieved the whole of the testimony and was not prepared to believe her. A true interpretation of that exchange in the context of the witness' testimony does not lead to the conclusion contended by Mr Tse. The magistrate was there indicating that if the witness did not wish to answer she was entitled to do so and that it was implicit from the answers the witness gave in the course of the exchange, that she did not wish to do so. That is a far cry from saying at that stage that the magistrate did not believe the witness or he found the witness unreliable. The magistrate disbelieved her at the end of the day because of her inconsistencies in her evidence and not because the magistrate thought she refused to answer question. There was no real possibility of the magistrate having made a predetermination and it cannot be said there was a reasonable apprehension of bias. The remark by the magistrate could not have rendered the conviction unsafe and unsatisfactory.

15. The Appellant was rightly convicted and the appeal should be dismissed.