HKSAR v. CHAN KAM PO

CACC 214/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL 

CRIMINAL APPEAL NO. 214 OF 2009

 (ON APPEAL FROM HCCC 16 of 2009)

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Reasons for judgment

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Hon Yeung JA (giving the reasons for judgment of the Court):

Introduction

1.  The applicant Chan Kam Po (nicknamed Por Chai) appeared before Deputy High Court Judge Longley on an indictment consisting of the 1^st charge of rape, the 2^nd and 3^rd charges of controlling another person for the purposes of prostitution.

2.  Yau Wai-man (“Ah Yau”) and Yuen Chun-yip (“Man Kei”) were named in the 2^nd and 3^rd charges as accomplices, but they were not charged as such. Instead they were charged with two counts of living on the earnings of prostitution of the victim (“Miss A”) during an unknown period in June 2008 and between 1 and 2^nd July 2008 respectively, and they had pleaded guilty to both counts. The applicant was not named in those two counts of living on the earnings of prostitution.

3.  The applicant pleaded not guilty to the three charges directed at him, but was convicted and sentenced to the total term of 8 years and 6 months’ imprisonment.

4.  Initially, the applicant sought leave to appeal against conviction on the 1^st charge of rape only. He subsequently also sought leave to appeal against conviction in respect of the 2^nd and 3^rd charges out of time. In his supporting affirmation, the applicant suggested that he had not been granted legal aid in respect of the 2^nd and 3^rd charges and that there was delay in obtaining legal advice. He further suggested that his application relating to the 2^nd and 3^rd charges would not result in any substantial increase in the hearing time.

5.  We allowed the applicant to proceed with his application in respect of all three charges. But at the conclusion of the hearing, we dismissed the application. We indicated that we would hand down our reasons in due course and this we now do.

The Prosecution’s Case and the Evidence

6.  Miss A, born on 22 November 1989, was at the time of the offence just over 18 years old. According to a clinical psychologist, Miss A functioned intellectually at the range of mild grade mental retardation with a full scale IQ at 61, a verbal IQ score at 59, and a performance IQ of 63, and that her independent adaptive functioning was equivalent to that of a 12½-year old child.

7.  Shortly after her 18^th birthday, Miss A worked as a prostitute in various brothels (“Ma Lams”), including “88”, “Fu To” and “Kam Fa” and she was also addicted to ketamine, taking it every day after work.

8.  According to Miss A, one of the pimps at the brothels introduced her to Ah Yau who later became her boyfriend, at least so she believed. However, instead of supporting her so that she could quit prostitution as he had promised, Ah Yau introduced Miss A to Man Kei, who falsely suggested that he had lent $15,000 to Ah Yau and that Miss A should repay the debt by working at a nightclub, which was in effect also a brothel.

9.  Miss A had to accompany men out to have sex. Miss A said when she refused, the “mummy” would call Man Kei to come to the nightclub. Man Kei would assault her and threaten that if she did not repay the “debt” owed by Ah Yau, he would break Ah Yau’s limbs. Miss A said Ah Yau also persuaded her to continue receiving customers.

10.  Miss A then did it for two nights, when Man Kei took her out to receive customers and she was allowed to go home in the morning. When Miss A tried to stop work on the 3^rd night, Ah Yau threatened that unless she came out, she would not see him again. After meeting Ah Yau, Miss A was returned to Man Kei, who again escorted her to serve customers and then he did not allow her to return home.

The First Period (one week in June 2008), the Subject Matter of the 2^nd Charge

11.  According to Miss A, sometime in June 2008, Man Kei took her to a flat near Mongkok Market where she met the applicant for the 1^st time. Man Kei, Ah Yau and the applicant took her for breakfast when Man Kei and Ah Yau said they had to go to work and asked the applicant to “look after her”. The applicant then took Miss A to “88”, where the applicant appeared to be in charge as he collected money from customers and then paid the prostitutes for their services.

12.  Miss A said she wanted to go home, but the applicant said it was not him who would not let her go home. Miss A suggested that the applicant had hit her at some stage and when she insisted to go home, the applicant summoned Man Kei who then told the applicant to lock up Miss A in the room. The applicant then told Miss A not to leave or else Man Kei would scold him and that if she needed any food, she should say so.

13.  For the next few days, it was either the applicant or Man Kei who would accompany Miss A to receive customers at night until a particular day when the applicant was taking a nap she was able to escape and went home. Miss A said when she was at “88”, Man Kei and Ah Yau would give her, through the applicant, a packet of ketamine to take every day.

14.  Miss A mentioned an occasion when she wanted to go downstairs to buy some things, but the applicant prevented her to do so. The applicant pulled her hair and slapped her and when she resisted by scratching him, the applicant again summoned Man Kei, saying that he wanted Miss A to be taken away.  When Man Kei came, he again assaulted her in the presence of the applicant.

15.  Miss A said that after working for a few days she was able to escape from “88”and go home when the applicant was taking a nap. However, in the following two weeks, Man Kei kept calling to scold her for running away from “88”. When she hung up on Man Kei’s calls, the applicant started calling her and scolded her with foul language, asking why she had run away. When Miss A told the applicant that she wanted to stay at home, the applicant asked her to come out at once as Man Kei had been scolding him for letting her go.

The Second Period ( the 1^st and 2^nd July 2008), the Subject Matter of the 3^rd Charge

16.  On 1^st July 2008, Miss A received a call from Ah Yau asking her to meet him at Langham Place. When they met at a café, the applicant, Man Kei and another prostitute appeared. Man Kei then told Miss A that they had been looking for her and there was no way for her to escape. He then told the applicant to “catch hold” of her. Ma Kai also said that he had called his big brother to come over to hit Ah Yau for helping Miss A to run away. Man Kei then told the applicant to take Miss A back to “88”.

17.  The applicant took Miss A back to “88” and on the way, Miss A heard Man Kei telling the applicant on the phone to make her change and to put on make up before taking her out to work. The applicant also questioned her as to why she had run away, as it had made Man Kei scold him.

18.  Miss A said she was taken out to work that night, but was rescued by a police car. Miss A mentioned an assault by Man Kei when he asked for her address. After Man Kei left, Miss A was crying and her nose was bleeding. The applicant then gave her a tissue to clean the blood and she told him that Man Kei was blaming her for not giving him her true address.

19.  Miss A said that the applicant suggested that she should leave “88”, saying that he would not provide any room for her, as he did not want any further trouble. The applicant also said that there were various things that Miss A could do, including calling her mother to make a report to the police. The applicant said he would not inform Man Kei. However, when Miss A did call her mother, telling her about the assault and discussing with her about making a report to the police, the applicant overheard what she said and he then called Man Kei and told him about it.

20.  Man Kei then arrived and took Miss A to his quarters. On the way from “88” to Man Kei’s quarters, her phone kept ringing and Man Kei took it away as he thought the calls came from the police. When he eventually allowed her to take the call and after knowing that the caller was a policeman, Man Kei told Miss A not to tell the police where she was and then snatched the telephone from her.

21.  Miss A also said on arriving at the staircase of Man Kei’s quarters, Man Kei slapped her continuously and pushed her into his quarters. He told her to sit down in the toilet and would not allow her to stand up, before calling Ah Yau to tell him that he could not keep Miss A in his quarters as there was another girl sleeping. Man Kei then took Miss A downstairs to meet Ah Yau, who then took her to his own home and left her with his mother and brother-in-law, saying that he would pick her up later at 6 p.m.to take her to work. Ah Yau then took Miss A back to “88” to get changed and at about 8.30 p.m. when Ah Yau was taking Miss A to a news-stand where Man Kei was, the police had come along in a police car and rescued Miss A.

The Rape, the Subject Matter of the 1^st Charge

22.  According to Miss A, one morning in the First Period at about 7 a.m. after receiving customers, she went to have breakfast with the applicant and Man Kei. After breakfast, the applicant took her back to “88” and there was a customer in one of the rooms, being served by a girl and there was also a person working in the accounts office.

23.  Sometime in the afternoon, shortly after 2 to 3 p.m., the applicant entered her room, saying that if she did not let him rape her, he would not give her ketamine and would make a phone call to Man Kei, asking him to come to hit her. Miss A said she was then forced to take a shower after the applicant insisted to take off her clothes, including her underwear. The applicant gave her a towel to dry herself before telling her to lie on the bed after taking off his own trousers and underpants. When Miss A was reluctant, the applicant removed the towel and used force to push her onto the bed.

24.  The applicant then laid down on top of Miss A. When she tried to push him away, he used one hand to press on one of her arms, and one of his legs to press on her other arm. The applicant touched her and penetrated her without using a condom despite her request to him to do so. Miss A said she gave the applicant a condom, but he just threw it onto the ground and threatened her that he would call Man Kei to come to hit her if she continued to “act like this”.

25.  Miss A also said that the applicant had slapped her and told her not to tell Ah Yau that he had not used a condom, or else he would get Man Kei to hit her. The applicant eventually ejaculated onto the bed and then took a shower. Miss A, on the applicant’s instruction, tidied up the bed before taking a shower.

26.  It appeared that Miss A did not mention the alleged rape to anyone when she returned home after the 1^st period. However, she did mention that she had been raped at 10.23 p.m., about two hours after she was rescued by the police on 2 July 2008 when she was taken back to “88” by the police on the 2^nd occasion. She also mentioned it to a social worker on 11 July 2008 during a video interview.

The Interview Record of the Applicant

27.  The applicant, having been arrested on 13 July 2008, revealed to the police in a video interview what according to him happened in relation to Miss A. He said he was a cashier at “88” earning a basic daily wages of $100. He admitted knowing that Miss A had been tricked by Man Kei and Ah Yau to work as a prostitute although he himself did nothing to her other than providing her with a place to sleep during the daytime.

28.  The applicant said he usually assigned Room1 to Miss A during her stay at “88” although she sometimes went to another room to sleep when there was no business. He said Miss A would get up after 5 p.m., put on make-up and get changed, before either Man Kei or Ah Yau took her out to work.

29.  The applicant also mentioned how Miss A left “88” at the end of the 1^st period and how the meeting at the café took place. He said prior to seeing Miss A, he met Man Kei and Ah Yau at the 7-Eleven in Soy Street when he was told that Miss A would be invited out as Man Kei wanted her to resume work. Later Ah Yau told them that Miss A had arrived, they went to the café to meet her as if it was a chanced meeting, as part of the scheme to cheat her out to work.

30.  The applicant described how Man Kei scolded Miss A for refusing to work and swore at Ah Yau for not repaying the alleged debt. The applicant admitted that he was at all time aware of the plot to persuade Miss A to work as a prostitute. However, the applicant denied that he was involved in putting pressure on Miss A to return to prostitution. The applicant said he did not exercise any control, direction or influence over Miss A for the purpose of prostitution. He said Miss A was free to move about when she was at “88”.

31.  The applicant denied that he had raped her, or had sexual intercourse with her whatsoever.

The Defence

32.  The applicant testified in his defence. The applicant’s case was that whilst he knew Miss A had been tricked by Man Kei and Ah Yau to work as a prostitute, his only role was to provide her with a place to sleep in “88” where he worked. The applicant said Man Kei promised to pay him $150 a day for putting up Miss A in “88”. He said he was not close to Man Kei or Ah Yau, but they were just in the same business, and so when Man Kei asked him if he would let her rest in “88” because she lived far away, he just said there was no problem. The applicant said it was Man Kei who brought Miss A to “88” after the meeting at the flat near the Mongkok Market.

33.  The applicant said Man Kei also told him to order food and drink for Miss A as and when she wanted them. The applicant said he saw Miss A consuming ketamine on the 1^st day at “88” and he told her to do so only inside the room. He also said when Miss A failed to comply with his request he did call Man Kei, who scolded her before taking her out to work until the next morning.

34.  The applicant said that Miss A had asked him for ketamine, and when he said he did not have any, Miss A scratched him. He then summoned Man Kei, telling him what had happened and asking him to take her away. However, Man Kei asked the applicant to allow her stay until he found another place for her after scolding Miss A.

35.  The applicant confirmed that one morning after returning from work, Miss A, after telling him that she wanted to go downstairs to buy something, left “88” and did not return. The applicant said if Miss A left without his knowledge, he would need to call Man Kei and if she left after consuming dangerous drugs in a muddled state of mind, she would need to have somebody to pick her up.

36.  The applicant said that a few days later, Man Kei called him when he was visiting his wife in the Mainland, asking if it was all right for him to bring Miss A back to “88”. When he returned from the Mainland, Man Kei called him again saying that he was having breakfast at a café and when he went to the café, he met Man Kei and Miss A and together they returned to “88”.

37.  The applicant also talked about how Miss A went out to work in the evening and how he had breakfast with her and Man Kei before returning to “88”. He said Miss A stayed at “88” for six to seven days in June 2008 and as usual she would take ketamine every day.

38.  The applicant denied ever taking Miss A to work, although he admitted that sometimes when he was going off duty, he would leave “88” together with her.

39.  The applicant said on 1 July 2008, 7 to 8 days after Miss A had escaped, Man Kei called him, asking him to meet for dinner. When he met Man Kei, Ah Yau was also there and they agreed to have Miss A back at “88”.

40.  On the instruction of Man Kei, the applicant took Miss A back to “88” to get changed and put on make-up before Ah Yau took her out. He said it was Man Kei who brought Miss A back the next morning. He also said when Man Kei went out to buy something, Miss A took Ketamine and when Man Kei returned, he went into Miss A’s room and he heard sounds of somebody being assaulted. After Man Kei left, he saw Miss A was bleeding from her nose and was crying.

41.  The applicant suggested that he was sympathetic to Miss A when she told him that she was afraid of Man Kei and was unhappy. She also said customers had done things to her that she did not like and she did not want to do it again. The applicant claimed that he then suggested that she get her family to pick her up, or even call the police.

42.  The applicant said he then telephoned Man Kei asking him to take away Miss A and not to bring her to “88” anymore. Man Kei came to take Miss A away, but she was brought back by Ah Yau in the evening to get changed. He was later told that Miss A had got into a police vehicle and had been taken away.

43.  The applicant suggested he was only involved because it was convenient for him to do so as Miss A’s clothing was still at “88”. The applicant reiterated that he did not take part in controlling or persuading Miss A to continue working as a prostitute.

Grounds of Appeal

44.  Mr James McGowan appeared to have confined the application to the 1^st charge of rape. Nevertheless, he suggested, as his 1^st ground of appeal, that the judge should have directed the jury, with reference to the 2^nd and 3^rd charges, that the guilty pleas by Ah Yau and Man Kei to the two counts of living on the earning of prostitution were not relevant to the question of the guilt of otherwise of the applicant.

45.  Mr McGowan submitted that the judge had not properly directed the jury on the evidence that Miss A had complained to others in respect of the alleged rape by the applicant when he did not warn the jury that “it is important that you should understand that the complaint is not independent evidence of what happened between (Miss A) and (the applicant), and it cannot of itself prove that the complaint is true.”

46.  In any event, Mr McGowan suggested that there were so much discrepancies and inconsistencies in Miss A’s evidence, particularly when comparing with her witness statement in connection with her allegation of rape that there must be a lurking doubt.

47.  Mr McGowan emphasized Miss A never told her parents about being raped and that she had not initially told the police about the alleged rape although she had many opportunities to do so and she only mentioned it after the police had asked her.

48.  Mr McGowan pointed out that some of the police officers had never recorded Miss A’s complaints of being raped. The suggestion was that whatever complaints had been made, they were made half-heartedly such that the officers did not find it necessary to record them.

Discussion

49.  There can be no doubt that Miss A, in both the 1^st and the 2^nd periods, worked as a prostitute during her stay in “88”, and that the applicant was in charge of the place. Not only was the applicant aware that Miss A was unwilling, he knew that Man Kei and Ah Yau had tricked her with an alleged debt in order to persuade her to be a prostitute. The applicant was also present on the occasions when Man Kei assaulted Miss A when she indicated her unwillingness to serve customers.

50.  Miss A gave clear evidence implicating the applicant and the jury had accepted her evidence, which, to a great extent, was supported by the applicant’s own admission as to what had happened during the 1^st and the 2^nd periods when Miss A stationed at “88”.

51.  Ah Yau and Man Kei pleaded guilty to two charges of living on the earnings of prostitution. In the admitted facts, the applicant was not implicated in those charges, which was consistent with the defence case that the applicant, whilst having knowledge of what Ah Yau and Man Kei did to Miss A, was not a party to it.

52.  In any event, the 2^nd and 3^rd charges were different to the charges that Ah Yau and Man Kei had pleaded guilty to. The judge had explained to the jury so.

53.  The judge had carefully directed the jury that they could only convict the applicant if they were satisfied beyond reasonable doubt that Miss A’s evidence implicating the applicant could be relied on. There is no requirement for the judge to remind the jury that the guilty pleas by Ah Yau and Man Kei to the two counts of living on the earnings of prostitution were not relevant to the guilt or otherwise of the applicant in respect of the 2^nd and 3^rd charges of controlling another person for the purposes of prostitution.

54.  Indeed if the judge were to direct the jury that the guilty pleas by Ah Yau and Man Kei were not relevant, it would have given rise to a legitimate complaint by the applicant as he had clearly relied on such guilty pleas to support his defence.

55.  On the facts of the case, we were not persuaded that there was any merits in Ground 1.

56.  Mr McGowan complained that the judge had failed to remind the jury that Miss A’s complaints of being raped was not independent evidence of what happened, and it could not of itself prove that the complaint was true. He, relying on R v Islam [1991] 1 Cr App R 22, suggested that the judge’s failure was fatal.

57.  When the judge asked the jury to consider when it was that Miss A first told somebody about the rape and, whether, if she had been raped, she would have told somebody about it earlier, the judge was reminding the jury that Miss A did not mention “rape” during the course of the car journey from the moment she was picked up by the police until she got back to Yau Ma Tei Police Station when her parents were also in the car.

58.  The judge had in fact painstakingly reminded the jury of all the evidence which could cast doubt on Miss A’s complaints of being raped. The judge specifically reminded the jury that Miss A made no mention of it during the time when she went back and stayed with her parents after her fist escape and that none of the officers made a note of Miss A’s complaint of being rape in their notebooks or investigation reports.

59.  The judge then reminded the jury that when Miss A was taken back to “88” on the 2^nd occasion when her father was not there, Miss A did, for the first time, tell the police officers that she had been raped. The judge further directed the jury as follows:

“If you accept that she did make a complaint of rape at this stage, that is not of course evidence that she had been raped, but it is evidence that may help you to decide whether or not Miss A has told you the truth about this rape.”

60.  The judge’s direction was adequate and contrary to Mr McGowan’s submission, was in compliance with the requirement of Islam (supra). The fact that the judge did not follow the specimen direction word for word was not significant and could not be the subject matter of any complaint.

61.  There can be no doubt that Miss A’s evidence was full of discrepancies and inconsistencies, when comparing with what she said in her witness statement. However, the judge had detailed to the jury the discrepancies and inconsistencies. The judge had also reminded the jury to approach her evidence very carefully and cautiously. The jury would of course bear in mind the mental capability of Miss A as revealed by the clinical psychologist.

62.  As Mr David Leung, counsel for the respondent, rightly emphasized, the witness’s statement from Miss A was taken in very difficult circumstances. There was evidence that Miss A refused to listen when her statement was read back. The social worker, who was present throughout the interview, was unable to confirm if the statement was an accurate record of what Miss A said.

63.  The judge, in his direction to the jury, said:

“I come now to the question of inconsistencies. When you come to consider inconsistencies between what (Miss A) said to you in court and what she said earlier outside the court, it is important to draw a distinction between what she said to Miss Choi, the clinical psychologist, during the video-recorded interview, and what is contained in the so-called witness statement which she signed on24 April this year. Since the interview with Miss Choi was video-recorded there can be no dispute as to what it was that (Miss A) had said during the interview.

But insofar as the so-called witness statement signed by (Miss A) on 24 April this year is concerned, the position is rather different. You have heard the evidence of Miss Mak, the social worker, as to how it came about that the statement was signed. She said that (Miss A) had arrived at the police station at 4.45 pm that afternoon. Initially the police started playing the video of the interview between her and Miss Choi to her. That had started at 5.45. Miss Mak said that (Miss A) did not appear to pay much attention to the video, that she seemed very bored, and she started to play with her mobile phone. She said that (Miss A) was given some food, but (Miss A) had said that she still felt very bored and would be confused if she had to view the video-recorded interview any further, and that (Miss A) said that she should be asked question directly. So what happened was that the rest of the video recording was not played to her.

You heard that for the next 3½ hours the WPC asked questions of (Miss A), who was sitting on the sofa. She would ask questions of (Miss A). (Miss A) would give an answer. Then she would ask (Miss A) to confirm the answer. She would be making notes. She would then go back to her desk and write down in a narrative form what she thought it was that (Miss A) had said.

Miss Mak said that as this process went on…(Miss A) became more and more impatient. When at the end, when the WPC had felt that she had finished the statement, the WPC said that she would read out the statement to (Miss A), but (Miss A) had refused to listen. (Miss A) had, however, agreed to sign the statement. So it appears, members of the jury, she signed the statement without knowing what it was it contained. Miss Mak herself said that she could not confirm whether or not what was written in the statement was an accurate record of what it was that (Miss A) had said..”

64.  All relevant materials were put before the jury and the judge’s summing up was, in our view, fair and balanced. Ultimately, it was a question of facts for the jury to decide, bearing in mind that the jury had Miss A giving evidence before them for four days.

65.  Despite the shortcomings of Miss A’s evidence, including those emphasized by Mr McGowan, we were nevertheless satisfied that the jury was entitled to accept her allegations against the applicant, including the allegation that he had raped her.

66.  We were satisfied that the convictions against the applicant in respect of all three charges were safe and satisfactory and that there was no valid basis for applying the lurking doubt principle as laid down in R v Cooper (1969) 53 Cr App R 82..

67.  The application for leave to appeal against conviction was therefore dismissed.