THE QUEEN v. WONG TSE MAN AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 183 OF 1987

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JUDGMENT

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1. The appellant and Wong Tse Man (1st defendant) were jointly charged with two offences - (a) exercising control over a woman with a view to her prostitution contrary to S. 130(1)(a) of the Crimes Ordinance, Cap. 200 and (b) man living on the earnings of prostitution contrary to S. 137(1) of the said Ordinance. The appellant was additionally charged with the offence of trafficking to Hong Kong in woman contrary to S. 129(1) of the said Ordinance.

2. The appellant pleaded not guilty to all the charges but after trial was convicted jointly with the 1st defendant of both offences, but was acquitted on the additional charge. He was sentenced to concurrent terms of 10 months imprisonment in relation to the first two offences and he now appeals against both conviction and sentence.

3. The circumstances relevant to these two offences are briefly that on the 29th day of December 1986, a Malaysian woman Lim Ai-ching came to Hong Kong, together with two other persons, a. man and a woman, for “fun” and to earn money as a prostitute here. Her fare to Hong Kong was paid by a man called Ah Ming, presumably in Kuala Lumpur, where she comes from, and upon arrival she and a party of four women and two men who were in the same flight, were met at the Airport by three men, amongst whom was the appellant. The party was then taken to the Lok Ying Restaurant in two taxis, Lim Ai-ching going with other passengers in a taxi which did not include the appellant. At the restaurant, she saw the 1st defendant among a group of people there and she was introduced to a person by the appellant with the words “These are my brothers and guides”. Following a meal in the restaurant, she was taken to rent some accommodation for her stay here (she was on a 3-month visa) and this having been done, she went the following day, apparently by herself, to shop for clothes. On the third day here, she was called to the same restaurant by Lui Kwong, her guide, where after having a meal, she accompanied her guide to various houses to entertain her customers by having sexual intercourse with them. The money paid for her prostitution was handed to the keepers of the various houses by her customers ($300 each), and this was in turn given to her guide. Her share of the proceeds was to be $165 per customer but for the first two days, she received no part of her earnings, these having been deducted for the cost of the air fare advanced to her in Kuala Lumpur. Altogether she was guided by Lui Kwong for 4 to 5 days and at the end of her working day, she was paid her share of $165 per customer by a Malaysian called Tam. She was in succession guided to the houses by Chan Wai-chung and by Yan Wing-luen, the latter having given evidence at the trial for the prosecution. During the days when she was paid by Tam, she was living with him in the apartment which was rented on her arrival in Hong Kong. Yan Wing-luen only guided her to the several houses where she entertained customers on 19th January 1987 and 20th January 1987 because both she and Yan were arrested by the police on the latter date at a one-woman brothel in Yaumatei at about 10 o’clock in the evening. In her evidence she also mentioned that she usually saw the appellant and the 1st defendant in the same restaurant before she went with her guide from 2-3 p.m. daily. She also stated that the purpose of meeting the 1st defendant and the appellant in the restaurant was that "they were there calculating money”, which was of concern to her, that money being "our work money", and that she met them together with the guides.

4. Yan Wing-luen gave evidence in this case under an immunity from prosecution granted by the Attorney General. He stated that he started working “with or for” the appellant and the 1st defendant in December 1986, which part of that month he does not know, and that his job was to take women to various houses for prostitution, such women having been supplied by the 1st defendant at the restaurant.

5. On the 19th January this year, he was called to the Lok Yuen Restaurant in Lock Road where he saw the 1st defendant and the appellant and the “hostess” of Lim Ai-ching, and there he was introduced to the latter and instructed by the 1st defendant to take her to various houses for the purpose of prostitution, and he was specifically directed to take the day's takings, after the deduction of $200 for himself, to the 1st defendant at the Yan Li Restaurant at the end of the working day. At this restaurant, that is the Lok Yuen Restaurant, the appellant also spoke to him saying “put your heart and soul into your work" which he construed as meaning finding as many customers as he could. Following lunch, he brought Lim Ai-ching to several houses for prostitution finishing at 2 a.m. the following day, i.e. the 20th of January, when he went to the Yan Li Restaurant where he saw the 1st defendant and the appellant together. He then handed the takings for the day, amounting to $1,000 odd to the 1st defendant and he was then handed $200 by the 1st defendant after he was asked how many customers there were and how much money was received by him. He says the appellant asked him how much he had done and to work more diligently. On the same day, he went to the restaurant where he saw both the 1st defendant and the appellant, and Lim Ai-ching. Neither the 1st defendant nor the appellant spoke to him on that occasion but when he took Lim Ai-ching to a one-woman brothel at about 10 p.m. the police arrived and arrested him and Lim Ai-ching. This witness was cross-examined at some length concerning his credibility and the unsavoury nature of his work and of his character during the second half of 1986 when he was engaged by others in taking women to houses for the purpose of prostitution. He was also questioned about his motives for seeking to become a Crown witness and he has admitted that he did that to save his own skin and had to incriminate other people as a result. He maintained that he had given the earnings of Lim Ai-ching to the 1st defendant but did not know what he did with them. The conversations which he told the court in examination-in-chief that he had with the 1st defendant and the appellant were not mentioned by him when he made a statement following the arrest of the 1st defendant and the appellant on 21st January this year.

6. A large number of sub-grounds have been submitted to support the contention that the conviction of the appellant on the first two offences is unsafe and unsatisfactory but the principal grounds are in relation to (i) the circumstantial evidence (ii) similar fact evidence wrongly admitted by the magistrate and (iii) the lack of corroboration of the evidence related by Lim Ai-ching; particularly for the period from December 28th, 1986 to January 19th, 1987.

7. The similar fact evidence complained of and admitted by the magistrate was that adduced from Yan and this appears in the record as follows:-

"I started working with or for D1 and D2 in December 1986. I don’t remember which part of December I worked for them. Females were supplied D1. At the restaurant is how he supplied me with the females. He would bid me to bring them to receive guests when he supplied females in the restaurant. The first time I was instructed to guide a female he instructed me to bring the females to the villas to receive guests. I was informed the need for a female at the villas by means of a pager. I carry a pager. The pager is mine. Whenever I was paged I bring the females to villa for prostitution."

Taken in the context in this case, the statement “I started working with or for D1 and D2 in December 1986”, an inference could be drawn that the appellant and the 1st defendant were together in the business of furnishing prostitutes to the houses which required them prior to 28th December 1986 when Lim Ai-ching came to Hong Kong. The principles for the admission of this kind of evidence lie in the probative value in relation to the offence or offences charged, and the statement of principle expressed by Lord Herschell in Makin & Makn v. the Attorney General for New South Wales[1], at p.65 is said to have been unsurpassed:-

“It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged hi the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.”

What is the probative value of the evidence given by Yan, and is there any striking similarity which would render that evidence to be of special evidential significance, see R. v. Scarrott[2] where Scarman, L.J. said in his judgment:-

"Positive probative value is what the law requires, if similar evidence is to be admissible. Such probative value is not provided by the mere repetition of similar facts, there has to be some feature or features in the evidence sought to be adduced which provides a link - an underlying link as has been called in some of the cases. The existence of such a link is not to be inferred from mere similarities of facts which are themselves so commonplace that they can provide no sure ground for saying that they point to the commission by the accused of the offence under consideration.”

8. Mr Sanguinetti derives support from the case of Noor Mohammed v. R.[3] for the proposition that the magistrate should have exercised his discretion to exclude that evidence in that its prejudicial value far outweighs its probative value. In that case, the defendant was charged with the murder of a woman with whom he lived by causing her to take cyanide, a poison which he had in his possession lawfully in the course of his trade as a goldsmith. There was no direct evidence that the defendant caused the deceased to take the cyanide, and there were some evidence that she might have committed suicide. Weak evidence suggesting that the defendant had previously killed his wife by causing her to take cyanide on the pretence that it was a cure for toothache, was held by the Privy Council to have been wrongly admitted.

9. The evidence which was admitted in the instant case, properly analysed and considered shows that the appellant was likely from his association with the 1st defendant and/or Yan to have aided and abetted the 1st defendant in supplying women for the purpose of prostitution and also of instructing Yan to act as a guide to take these women to such houses as require them for their customers, and therefore to have shown a disposition for committing the offences which are the subject of this appeal. This evidence in my view although relevant, is of a tenuous character particularly as after stating that he had worked “for or with the 1st defendant and the appellant” in December 1986, in relation to the supply of women and the instructions given to him by the 1st defendant to take these women to what are euphemistically termed “villas”, such evidence was only levelled in the direction of the 1st defendant. That the magistrate drew adverse inferences from such evidence against the appellant is shown in his findings:

“6) PW1's guides, one of whom was PW2 were supplied by D1 and D2.

7) D1 and D2 received monies collected from the customers by PW1's guides.”

10. The statements in Yan's evidence “I started working with or for D1 and D2 in December 1986, I do not remember which part of December I worked for them” is in my view of a more prejudicial character than of probative value and the magistrate should have excluded this evidence insofar as the appellant is concerned. In my view, he also drew the wrong inferences noted earlier from the evidence which had been given by Yan in relation to the matters which occurred prior to the arrival of Lim Ai-ching in Hong Kong.

11. The magistrate however rightly noted in his statement of findings that in relation to the first offence, that is exercising control over a woman for the purposes of prostitution, that the woman Lim Ai-ching is not an accomplice, citing R. v. Fong Yuk-choi & ors.[4] in support of that view, where Silke, J.A. stated:-

“We think the trial judge to have been correct in his finding (that the girls under the control, direction or influence of the defendants were not accomplices) and that in following the guidelines set out in King, he came to the right conclusion. King of course referred to living on immoral earnings. Lord Reading, C.J. having recited the defence argument that the girl was an accomplice and that the girl must be an accomplice in the offence charged against the appellant went on:-

'It is sufficient to say that there is no evidence of this and it is not necessarily the case. The only way in which it is possible to argue the case is to say that in doing some of the acts, which she must have done to carry out the intention of the appellant, she must have been guilty of soliciting or of some other offence. It is impossible to say that she is therefore an accomplice in the crime with which the appellant was charged.'

So here the argument would have to be that if in engaging in prostitution the girls were aiding and abetting the exercise by the applicants of control, direction or influence over them for the purpose of their very prostitution. That they willingly accepted the assistance of the applicants which provided them with opportunity to carry on their profession is undoubted. But in our view it does not make them accomplices in the sense of participes criminis.

In King, Lord Reading went on to say that the judge 'is justified in warning the jury against accepting the evidence of a girl who is leading such a life against a man’.”

12. In any event the evidence of the woman in respect of the first charge required corroboration as a matter of law, that is under Section 130(2) of the Crimes Ordinance before a defendant to such a charge may be convicted.

13. The magistrate was well aware of this requirement and of the fact that there was no corroboration of the events which Lim Ai-ching deposed to prior to 19th January 1987, but derived such corroboration of what had occurred before that date on the consistency of evidence of system recounted by both Lim Ai-ching and Yan in their evidence. He pointed particularly to the findings which he made that these two witnesses did not conspire to falsely manufacture their evidence.

14. In order to be capable in law of constituting corroboration, evidence “must be independent testimony which affects the accused by. connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it. The test applicable to determine the nature and extent of the corroboration is thus the same whether the case falls within the rule of practice at common law or within that class of offences for which corroboration is required by statute." per Lord Reading, C.J. in R. v. Baskerville. This quotation is for the purpose of noting the distinction between consistency in evidence and that of corroboration which is required in law. The evidence of Lim Ai-ching which needed to be corroborated is contained in the following statements which she made at the trial:-

“I met him again at Lok Ying Restaurant. Almost everyday. Approximately in the afternoon was the time I saw him in the restaurant. That is before the time at which I started work. This refers to the 1st defendant. I usually saw D2 in the restaurant before I started work, and D1. I would meet my guide at 2 to 3 O’clock. Purpose meeting D1 and D2 in the restaurant daily, well sometimes I saw them calculating money. I was concerned in that, our work money. I knew how much I'd paid after I finished work. The guides and D1 and D2 did know each other. I had met D1 and D2 together with the guides. That was almost everyday.”

15. According to her evidence given before this statement, Lim Ai-ching stated that at the end of everyday’s work, she was paid her earnings by Tam with whom, as I have mentioned earlier, she lived in the flat rented for her and she also stated “our guide took back $300 and paid us $165". If she were concerned about the calculation of money representing her earnings, she never inquired of either the 1st defendant or the appellant how much had been deducted for her air fare and that her evidence regarding the calculation of her earnings is in fact contradicted by her own evidence of how ouch she knew she would receive at the end of the day's work and that she would then be paid by Tam. In fact there is no corroboration of this statement regarding the calculation of money from Yan: "v/hen I finished work after I went to hand over the sum, I left. I handed over the sum at Granville Road, Yan Li Restaurant. I saw there Wong Tse Man (the 1st defendant) and Wong Chun Seng (the appellant). I went with PW1, I handed the money to Wong Tse Man (D1). He gave me back $200 after I gave him the sum, then I took a cup of tea and left to have fun." At no time does Lim Ai-ching mention that she met either the 1st defendant and/or the appellant at the Yan Li Restaurant and again in her evidence she said she never received any payment for the 19th and 20th of January 1987. If she had accompanied ran to the Yan Li Restaurant on the early morning of 20th January 1987, the expectation would have been that she be paid at that time since “I knew how much I would be paid after I finished work". In my view insofar as charge B is concerned, there is not only no corroboration of the evidence but the alleged involvement of the appellant in this charge is based on contradictory statements made by Lim Ai-ching and Yan and also on conclusions drawn from his being seen frequently in the company of the 1st defendant. The circumstances are certainly suspicious, although throughout the evidence, apart from the instance of calculating money mentioned by Lim Ai-ching, and the chat which Yan mentions as having occurred on the first occasion, (he was instructed by the 1st defendant to take Lim Ai-ching to houses for the purpose of prostitution), where he was told to “put your heart and soul into your work”, the evidence indicates that the directions to the guides came from the 1st defendant, and the subsequent payment of the earnings from prostitution were made to the 1st defendant alone.

16. As in R. v. Ip Kam Shing[5], the prosecution did not rely upon the presumption set out in the Crimes Ordinance when referring to the charge of living on the earnings of prostitution. This presumption states:-

“Where a male person is proved to live with or to be habitually in the company of a prostitute or is proved to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that he is aiding, abetting or compelling her prostitution with any other person or generally, he shall, unless he can satisfy the court or the magistrate to the contrary, be deemed to be knowingly living on the earnings of prostitution.”

17. In that case Briggs C. J. in the Full Court thought that as a consequence of the failure by the prosecution that such et presumption cannot be relied upon appeal, although he states “So far as this charge is concerned, the girls were clearly accomplices and their evidence should have been corroborated”.

18. In another case involving a similar charge, Roberts C.J. in R. v. Ma Siu-lung[6] stated that the prostitute is an accomplice and that in practice, it was desirable that her evidence be corroborated.

19. There is however no rule that the evidence of one accomplice may not be used as corroboration of th8 other (Davies v. Director of Public Prosecutions (1954) A.C. 378) so that the complaint against mutual corroboration of Lim Ai-ching and Yan is in my view not a valid one.

20. What is more substantial is a reliance upon evidence of suspicious circumstances concerning the alleged participation of the appellant in these two offences because of his undoubted association with the 1st defendant. The magistrate has found that the meetings in the restaurant were not pure coincidence but the summary of the evidence against him, leaving aside similar fact evidence which I held to be inadmissible and the evidence of Lim Ai-ching regarding the calculation of money, which was contradicted by her in the statements given in her evidence, that (1) he was present when Yan was instructed to "guide" Lim Ai-ching and (2) in a chat, he was asked to put his heart and soul in his work” and interpreted by Yan as “getting as many customers as he could".

21. These circumstances certainly raise the suspicion that he was connected with the 1st defendant in some way in respect of these offences but as was said in the judgment of Huggins, J., as he then was, in Chan Yuet Kwan and Chan Yiu Kuen v. The Queen[7]: a case concerning the solicitation and receiving of an advantage by 2 police officers from a person involved in a traffic accident:

"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, one of guilt and one of innocence, they can give rise to no more than suspicion and if suspicion be added to suspicion the total can be no more than suspicion.”

and going further on in the judgment, he said:-

“Counsel for the Crown asked us to approach all these matters with robust common sense but, while we do not for a moment suggest that this was not a proper case to bring before the Court, we think our duty is to insist that matters of suspicion, however grave, should not be elevated to the level of legal proof.”

22. It is clear that the magistrate in convicting the appellant relied in part on the appearances of the 1st defendant and the appellant together in the restaurant as being too regular to be coincidental, but this circumstance does not raise the coincidence to proof of guilt nor could an inference be drawn from those circumstances that he was in some way assisting in directing, controlling or influencing the prostitute Lim hi-ching, or that he was living on the earnings of her prostitution.

23. In all the circumstances of this case, the convictions of the appellant, are in my view, unsafe and unsatisfactory. The appeal against conviction is accordingly allowed and the sentences quashed.