R. v. WONG WING CHIUN

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J U D G M E N T

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Sir Derek Cons, V.P., delivered the judgment of the Court:

1. Wong Wing Chiun, the defendant below; was convicted in December last year by Judge Moylan in the District Court of being a man living wholly or in part on the earnings of prostitution. He was sentenced to four months' imprisonment, suspended for 18 months. He now seeks leave, through counsel, to appeal against his conviction.

2. The evidence against him came from the prostitute herself who carried on business as a call-girl.

3. This witness had identified the defendant to the police as being the person at the reception counter of one particular villa to which her pimp had on several occasions despatched her to meet her customer. (He had also sent her to other villas but they do not concern us today.) She further said that on each occasion that she went to this particular villa, after she had performed the services expected by her customer the defendant had paid her $300. Other parts of her evidence indicated that her customers were normally required to pay for her services something in the region of $500 to $1,000.

4. From this evidence the judge found it an "inescapable inference" that "he was playing an active role in (the witness') prostitution" and presumably that  he was receiving some financial reward for so doing.

5. The charge against the defendant was one of several before the judge below which all depended upon the evidence of the same prostitute. The remaining charges were against the pimp himself. The judge found her "a very impressive witness. She convinced me that what she had to say was the truth". Later, when dealing with evidence given by the defendant, he said:

"(the defendant) was obviously endeavouring to limit his connexion with the particular villa and that, I am convinced, was because what (the witness) had said about seeing him there on every occasion when she was 'on the job' was the truth."

6. The first ground of appeal is that the judge gave no or no proper consideration to inconsistencies in the evidence of the witness, i.e.:

(a) whether it was the defendant who led her to the room to serve customers; and

(b) whether it was he who paid her after she served customers.

7. As to (a) there certainly was some inconsistency between her evidence-in-chief and her evidence in cross-examination. As to (b) the judge found that in the context in which the answers were given there was no inconsistency and in that respect we are in agreement with the judge. In any event the ground would have failed because quite clearly the judge did consider (a) when coming to his conclusion as to the credibility of the witness. His comments are to be found on p. 5 of his judgment.

8. The ground however was not argued in that way. Instead it was suggested, by reference to s. 137(2) of the Crimes ordinance, - which is a subsection creating a presumption where a person exercises control, direction or influence over another person in such a way to show that he is aiding, abetting or compelling that person's prostitution, - that there was a duty cast upon the judge to resolve the inconsistency one way or another. It is an argument that we regret to say we are completely unable to appreciate.

9. The second ground is that the judge failed to warn himself of the special need for caution before convicting the appellant in reliance on the correctness of the witness' identification. The judge certainly had no doubt about the correctness. He said:

"When the witness was asked by police to take them to Ying Pun Court Villa to see if she could identify Wong Leung (i.e. the defendant is said to be), with natural and honest hesitation she said that she 'might not be able to recognize him' or 'It has been quite a long time. I cannot be sure.' But when she saw the defendant at the Villa she had no hesitation in identifying him as Wong Leung".

10. In that situation we cannot see any particular need for the judge to warn himself, but again the point was argued slightly differently. It was suggested that her answers in cross-examination left some ambiguity. They were as follows:

"Q. On 13 May when you picked out someone in Ying Pun Court Villa, did you tell the Police Officer, 'It has been quite a long time. I cannot be sure'?

A.   I said, 'I am afraid that I might not be able to recognize him'.

Q.   I suggest to you that when you pointed the defendant out to the Police on 13 May you said 'It has been quite a long time. I cannot be sure'.

A.   I don't remember."

It was said then that the judge ought not to have relied upon the identification when the prosecution failed to clarify the ambiguity. However the argument falls likewise to the ground when one reads further down the same page to which we were referred, in her re-examination:

"Q. You told Police, on 13 May, 'I am afraid that I might not be able to recognize him'.

A.   Yes.

Q.   Under what circumstances did you say that to Police?

A.   Police asked me to make identification. I said that I was afraid that I might not be able to make identification when I arrived there. ..."

11. The third ground of appeal is that the judge was wrong to conclude that the customer had paid more at the villa than was passed on to the witness herself. We have already mentioned that her evidence showed that the usual charges for her services ranged from $500 to $1,000. There is no evidence that this sum was specifically related to the villa in question, but there is no reason to think that in the circumstances these would have been any different from those elsewhere. In the absence of evidence to the contrary, - and the judge was clearly not impressed with the evidence of the defendant or his witness, - it is our view that the judge was well entitled to infer that more than the $300 received by the witnesses had in fact been passed to the person apparently in control there and that he had retained some of the extra.

12. For these reasons the application for leave to appeal against conviction must be refused.