THE QUEEN v. LI LIK

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JUDGMENT OF THE COURT

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Silke, V.-P.:

1. Seven defendants appeared for trial in the District Court before His Honour Judge Baily on a charge sheet containing 34 charges. They were all connected with the transmission to Hong Kong of women for the purpose of prostitution and with those women's subsequent prostitution and the earnings derived from it.

2. We are now concerned only with Li Lik, aged 19 and the 2nd defendant at trial - "the applicant".

3. The charges relating to him were the 6th, 7th and 8th all of trafficking in women to Hong Kong for the purposes of prostitution contrary to section 129(1) of the Crimes Ordinance, Cap.200. The women concerned were, as set out in those charges, respectively Lau Wai Yee (PW1), Wong Lai Nan (PW2) and Wong Hiu Yin (PW3). The 9th, 10th and 11th charges were those of living on the earnings of prostitution contrary to section 137(1) of the Crimes Ordinance and in the order of those charges the women concerned were: Lau Wai Yee (PW1); Wong Hiu Yin (PW3) and Wong Lai Nan (PW2).

4. The applicant was acquitted on 6th and 7th charges but convicted on the 8th, 9th, 10th and 11th. A general sentence of detention in a Training Centre was made.

5. He now seeks leave to appeal against the convictions.

6. It was the case for the Crown that there was a syndicate in operation which smuggled the three named girls into Hong Kong and that after their arrival they were forced into prostitution which was the real intent behind its activities.

7. From the evidence of the girls it emerged that PW3 met the applicant at the Bao On County Guest Home in China on 16th December 1988 and thereafter on a number of occasions between then and 23rd December. There were others of the defendants at the trial also present. The applicant offered to introduce her to a "good job", the nature of which was unspecified, but it was clear that he was aware of the suggestions by others that the girl come to Hong Kong as a bar hostess. He left China returning to Hong Kong - and his travel documents substantiate this - on 23rd December. The other two girls arrived at the guest house on the afternoon of that day.

8. After a land journey to Shekou, they boarded a boat which took them to a beach in Shatin. Upon arrival in the Territory two vehicles met them. In one of those vehicles was the applicant. The girls went in one of those vehicles, with the applicant and other of the defendants in the second, to Mongkok - this on 27th December. There they were taken to a flat. While in that flat they were told that the bar owner did hot wish to employ them, that they would have to repay the money which it had cost to bring them from China, and that sum was severally referred to as either $20,000 or $60,000. In order to do this they would have to become prostitutes. The girls became very frightened. They cried. They were told, and this in the presence of the applicant, that if they refused to work as prostitutes then they would be sold to either Macau, Japan or Thailand. It was the applicant himself who mentioned their being sold to Macau.

9. The girls discussed this matter amongst themselves, PW3 being a general interpreter for the other two, and PW3 decided to telephone the police. The flat owner was present and became aware of what PW3 was trying to do and called the applicant. The applicant arrived, took away the phone and slapped PW3 who then threw the phone at him whereupon she was slapped again. All three were crying and making a considerable scene. The telephone was hidden away after that in a cockloft. They were detained overnight and the applicant, while not remaining in the premises, came and went a number of times.

10. On the following morning because of the noisy scene on the night before they were moved to another flat.

11. There was a good deal of other evidence as to what took place between then and the arrest, quite fortuitous, of PW1 and one of the defendants on 8th January. Before considering that it is necessary to look to the trial judge's Reasons for Verdict and to the grounds of appeal as filed and argued by Mr. McCoy who appears for the applicant in this Court. Those grounds stem directly from the excessively cursory consideration by the trial judge in his Reasons of the evidence generally.

12. The grounds can be conveniently divided as between the 8th charge and the 9th, 10th and 11th charges. Mr. McCoy has submitted that the evidence covering the period in China and the actual arrival of the girl, Wong Hiu Yin, in Hong Kong was not such as could found a conviction under section 129 of the Ordinance.

13. Subsection (1) of that section reads:

"A person who takes part in bringing a woman into, or taking a woman 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 7 years."

and it is Mr. McCoy's argument that this section contains two matters: (1) the "taking part in bringing" and (2), "for the purpose of prostitution".

14. He says that there was no sufficient evidence to show that the applicant took part in the bringing of PW3 as there was no evidence that he arranged any transport for her and the applicant's acquittal on charges 6 and 7, concerning the other girls, was because he could have been at the beach for many reasons - which equally applied in the case of PW3. We do not agree. The evidence if believed, and it was uncontroverted for the applicant gave no evidence at trial, was ample to show his participation in the bringing of this woman to Hong Kong. It is clear that the applicant had not met either of the girls concerned in charges 6 and 7 in China and the beach meeting was the sole evidence relating to those charges.

15. On the second point, "for the purpose of prostitution", the judge was perfectly entitled to infer on the whole of the evidence before him and to come to the view that the suggestions made in China of "a good job" or "work as a bar hostess" were merely matters spoken of to induce the girls to come to Hong Kong and the real purpose throughout was that they become prostitutes.

16. While we accept that the trial judge was by no means as clear as he might have been in stating his findings on this charge, we are left in no doubt at all that the charge was fully brought home to the applicant.

17. Having found the applicant guilty on the 8th charge the trial judge went on to say this:

"I deal together with the 9th, 10th and 11th charges against D.2 of living on the earnings of the prostitutions of P.W.1, P.W.2 and P.W.3."

That reference to the witnesses by number is factually correct. Mr. McCoy however has drawn our attention to the fact that for some reasons best known to the draftsman the names of the girls in those charges did not follow that order. This we have already indicated. Mr. McCoy prays this point in aid of his general proposition that the trial judge failed to give separate consideration to each of the charges as he is required to do.

18. While at an earlier portion of his Reasons the trial judge had evaluated the personae of and the evidence given by the three girls, whom he found to be "generally honest", and while he said of their evidence that it was remarkably similar without any discrepancies of a serious nature and while the whole tenor of his Reasons is that he found them capable of belief and did believe them, he failed to be seen to give his attention to the whole of their evidence describing that which took place after what has come to be known as the "slapping incident" referring to it merely as "other incidents".

19. Because of this the trial judge's reliance upon the presumption contained in section 137(2) as arising solely from the "slapping incident" is strongly contested by Mr. McCoy. Section 137 reads as follows:

"137. (1) A man who knowingly lives wholly or in part on the earnings of prostitution. shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 5 years.

        (2) For the purposes of subsection (1), a man who lives with or is habitually in the company of a prostitute, or who exercise 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."

20. It is Mr. McCoy's contention that at the time of "the slapping incident", which the trial judge thought triggered the presumption, none of the girls had become prostitutes therefore the applicant was neither living with nor habitually in the company of a prostitute. The element of control, evidenced by the actions of the applicant at the Mongkok flat, over these three girls could not show him' to' have been either aiding, abetting or compelling something which had not yet taken place - the prostitution of the girls with others with earnings resulting therefrom. You cannot have prostitution in futuro in this form of charge. He suggests that the trial judge, though he did not say so, was influenced in coming to his conclusion that the presumption had been triggered by a form of post hoc, propter hoc argument based on the subsequent incidents. He submits that this Court is not entitled, the trial judge having fallen into the error he did, to go on to consider those other incidents, which the trial judge treated so dismissively, on the issue as to whether or not those incidents could have given rise to it.

21. We accept Mr. McCoy's submission as to the trial judge's having erred on the presumption being triggered by the slapping incident. In our judgment, despite Mr. Cross's submission to the contrary, this presumption is intended on its wording to deal with the situation where a woman is a prostitute and the actions of a man charged with knowingly living on her earnings from that activity comes within the ambit of the various matters recited in it. Further the slapping incident took place in December and the 9th, 10th and 11th charges were alleged to have taken place in January.

22. Had the trial judge not sought to take what, with respect, was the easy way out he would then have had to consider matters which occurred later. Evidence such as the transfer of the girls from one flat to another; their being taken to other places to work as prostitutes with minders in constant attendance; that the applicant was shown to have been taking a close interest in what was going on, meeting the girls on a number of occasions; his presence in a car with them after one of the bouts of prostitution; that one of the minders was seen by one of the girls to pass money to one of the defendants immediately after acts of prostitution who in turn passed some of that' money to the applicant. The list is not exhaustive.

23. While not each of the girls told precisely 'the same story, when one looks at. their evidence -  and the trial judge accepted them as truthful witnesses and' that there were no discrepancies of moment - it is plain that' it disclosed sufficient participation by the applicant in their activities to permit a finding that he was knowingly living on their earnings.

24. The evidence concerning the 9th, 10th and 11th charges was very much an amalgam of that said in Court by the three girls. The trial judge should, however, have considered each of the charges individually. The fact that he did not do so coupled with his error in deciding to rest the convictions upon the presumption when it had not in fact arisen were errors in law. But that having been said, this Court is entitled to consider the whole of the evidence which lay for the consideration of the trial judge - and we have the transcript. Had the trial judge properly considered all of it, and it must be remembered that there was no jury, we cannot conceive of his having come to any conclusion other than that of the guilt of the applicant. To do so would have been perverse.

25. We are left in no doubt at all, despite the eloquence of Mr. McCoy, that the convictions of the applicant on the 9th, 10th and 11th charges occasioned no miscarriage of justice. Had the trial judge carried out the duties required of him it is probable that an entire morning's hearing in this Court, with all the consequent expense to the taxpayer, could have been avoided.

26. In the event, we give leave, treat the hearing of the application as the hearing of the appeal but dismiss the appeal.