THE QUEEN v. CHU WAN FUNG

Headnote

                Magistracy Appeal - Living on the earnings of prostitution - Isolated occasion - No primary facts of control over prostitute - Inferences which can be drawn.

                                Magistracy Appeal No. 630/90

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

(Appellate Jurisdiction)

----------------

JUDGMENT

----------------

1. This Appellant was convicted before Mr. Morley, a magistrate sitting at South Kowloon, of living on the earnings of prostitution and sentenced to 6 months imprisonment. Against that conviction he now appeals. The offence of which he was convicted is found in S.137 of the Crimes ordinance:

"A man who knowingly lives wholly or in part on the earnings of prostitution shall be guilty of an offence ....."

2. Under Subsection 2 there is a presumption, which reads as follows:

".......a man who lives with or is habitually in the company of a prostitute, or who exercises control, direction or influence over a woman's movements in a way which shows he is aiding, abetting or compelling her prostitution with others shall be presumed to be knowingly living on the earnings of prostitution unless he proves the contrary."

This presumption is apparently well utilised in Hong Kong to overcome a number of evidential problems which arise with regard to prostitution.

3. It is clear to me that the structutre of this subsection demonstrates that the legislature was accentuating the importance of a person doing something with a prostitute on more than one occasion, e.g. living with, which presupposes that it is not an isolated occasion of co-habitation, habitually being in the company of a prostitute and thirdly exercising control, direction or influence over her movements. However I accept what Mr. Saw has submitted to me that there could well be one isolated incidence where the presumption is triggered, where the evidence is such as to demonstrate clearly that the person is indeed controlling, directing or influencing a woman's movements.

4. In my judgment, although I accept that, in so far as the construction of this subsection is concerned, an isolated occasion is sufficient in law, nevertheless the evidence to support that isolated occasion must be of the strongest sort. It must be evidence which clearly indicates that the subsection is satisfied. Where, for example, the evidence relates to more than one occasion or more than one woman, it may well be that the presumption is from the point of view of the Prosecution not easily rebutted.

5. The evidence in this case is really of the sketchiest sort.  In the early hours of the morning a police officer went to a massage parlour, which everyone agrees was a geniune massage parlour and the Appellant spoke to him about a massage and the services of a woman who would provide sexual intercourse, I do not, in the course of this oral judgment, repeat all the evidence.

6. The position was, that during the trial, the Appellant sought to put forward that he was not the person who had had the original conversation in the early hours of the morning with the police officer. The magistrate disbelieved him and it is clear from the very careful findings of fact which were made that the magistrate came to the conclusion that the Appellant was a person whose evidence was not to be believed.

7. That was obviously a conclusion to which the magistrate could properly come to and I naturally accept that.   On the other hand, a person who is a liar, does not necessarily make him guilty of an offence. People tell lies for a variety of reasons and the fact that the Appellant was a dishonest man must not cloud the mind of the magistrate to discover whether or not the Prosecution had satisfied him with regard to the ingredients of the particular offence. As I said, what happened was, that the Appellant said "did he have a favourite masseuse?" and the police officer was then told that he could get sexual intercourse for $500; he was directed into a room and later a girl turned up. After a long massage, they discussed sexual intercourse at the price of $500 and he was later taken to, what is called a villa, and apparently satisfied himself that he was going to yet sexual intercourse by telling her to take her clothes off and also taking his own off but then disclosed that he was a police officer.

8. With the greatest respect I disagree with the magistrate. First of all, this was a massage parlour. The person that appeared was not a prostitute but a massage girl. I could well understand the magistrate corning to a different conclusion, were this to be a sharp operation. For example, if the massage house was purely a front for prostitution and was not a massage house at all, then it would be a conclusion to which the magistrate would be justified in so coming. There were other girls present, and other persons present.

9. The woman then who came to the room was not a prostitute, but someone coming for the purposes of providing massage service. The price she demanded later, being the same as that foreshadowed by the Appellant, is capable of a variety of interpretations. It may well be that the current price then prevailing for sexual intercourse was $500. I confess I know not. But it may also be that all of the girls on these premises were in a position to offer sexual intercourse and that nothing had been done by the Appellant at all because all of the girls were willing to offer sexual services to anyone who had a massage.

10. I also find nothing in the magistrate accentuating the fact that she goes to this particular room 4. This was the room the police officer was in for the purposes of having a massage. There is no doubt at all, as I said before, that evidence can be led by the Prosecution that on an isolated occasion a person can be proved to be controlling or influencing the movements of a prostitute, but in my judgment, the primary facts to be led must be strong and, further than that, any inferences to be drawn from primary facts must be proper inferences. As Mr. Justice Huggins in Chan Yuet Kwan v. The Queen CA 912173 said:

"It is rightly contended that an inference of guilt may not properly be drawn from primary facts unless it is the only inference which can reasonably be drawn from those facts.  Nor can any combination of inferences amount to proof of guilt unless in each instance the only reasonable inference which can be drawn from the facts on which it is based is one of guilt,  for where primary facts admit of two inferences, for where primary facts admit of two inferences, one of guilt and one of innocence, they can give rise to nor more than suspicion and if suspicion be added to suspicion the total can be no more than suspicion."

11. I have reviewed the evidence. It is right that I do not, in any shape or form, seek to go behind pure findings of fact such as this Appellant being a liar and I do not.   However I have no doubt in my mind, that the inferences which this magistrate drew, were wrong, or were not the only possible inferences. Suspicion was raised, but nothing more. There was no primary evidence whatsoever to link this man with the controlling of a prostitute. He was not found in possession of a portable telephone; no money passed between him and the prostitute, although 1 accept that the absence of money is not a conclusive factor, but it is still a factor which has to be taken into account, this was on one occasion, there eras no evidence that he had directed any other girl for the purposes of prostitution and behind it all is the fact that this was, according to the prosecution evidence, a geuine massage parlour.