HKSAR v. CHENG WEI HUA

[English Translation – 英譯本]
HCMA 377/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 377 OF 2014

(ON APPEAL FROM ESCC 1421 OF 2014 )

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REASONS FOR JUDGMENT

1.  The appellant was charged with one count of “soliciting for an immoral purpose”, contrary to section 147(1)(a) of the Crimes Ordinance, Cap 200 of the Laws of Hong Kong. The appellant pleaded not guilty and was convicted after trial by Magistrate Mr David Cheung of the Eastern Magistrates’ Court. He was sentenced to 4 weeks’ imprisonment, suspended for 12 months, and a fine of $3,000. He appealed the conviction.

2.  After the hearing, I allowed the appeal, quashed the conviction and set aside the sentence, for reasons which I now give.

Facts

3.  I adopt by and large the parties’ cases as set out by Mr Lin, Senior Public Prosecutor for the respondent, in his written submissions.

The prosecution case

4.  In the small hours of 30 March 2014, police officers of Team 2, Special Duty Squad, Central Police Station were instructed to conduct an anti-vice operation in the Lan Kwai Fong area in Central. Officer Ng, PW1, was instructed to disguise himself as a tourist to perform undercover duty.

5.  At 1:33 am, when Officer Ng was making an observation outside Lan Kwai Fong Hotel, Wyndham Street, the appellant approached him and asked him if he could lend her his lighter. After that, the appellant took the initiative to ask Officer Ng his name. She claimed she was called Lily, and Officer Ng replied that he was called Ah Wah.

6.  The appellant then asked Officer Ng if she could make friends with him. She also told him her mobile phone number and asked him to call her. He did so and the line could get through, and so the appellant had Officer Ng’s mobile phone number.

7.  Later, the appellant chatted with a foreigner, and the two of them left the above address. After two minutes or so, Officer Ng’s mobile phone rang, with the appellant’s mobile phone number displayed as the caller. Officer Ng took the call, and a female voice on the line asked him where he was. Officer Ng told her his location, and after ten seconds or so he saw the appellant again on the pavement outside Lan Kwai Fong Hotel in Wyndham Street.

8.  The appellant went up and said to Officer Ng, “Ah Wah, need someone to keep you company?” Officer Ng answered, “Keep me company for what?” The appellant said, “To accompany you to rent a hotel room and get laid.” Officer Ng then replied, “How to calculate?” The appellant answered, “I charge you $6,000, alright?” Officer Ng replied, “That expensive?” The appellant then said, “I charge you less, blow-job included.” Officer Ng then indicated his acceptance.

9.  Outside Lan Kwai Fong Hotel at Kau U Fong, the supervisor and colleagues of Officer Ng intercepted the appellant and revealed their identities together with Officer Ng. The police arrested the appellant and seized three unopened condoms from the black handbag she was carrying. Under caution, the appellant told the arresting officer, “My husband and I have just divorced and I have to support my two children, and that’s why I come out to work to make money.”

The defence case

10.  The appellant elected not to give evidence. The defence case, as revealed during cross-examination of the prosecution witnesses, was that the conversation between the appellant and Officer Ng was not as alleged by Officer Ng, and that the appellant had not uttered the words which the arresting officer said she had under caution.

The magistrate’s findings

11.  Having considered the facts of the case, the magistrate was satisfied that the appellant did say the alleged words to the arresting officer under caution. The magistrate found that the content could not be taken as an admission to the charge, but he was satisfied that the appellant was telling the truth. The magistrate also pointed out that what the appellant had said “was consistent with Officer Ng’s testimony that [the appellant] asked him if he needed someone to keep him company and the subsequent conversation between them, and the relevant admission only lends support to Officer Ng’s testimony.”

12.  Regarding the elements of the offence, the magistrate pointed out that there was no dispute over the “public place” aspect. Having referred to the definition of “solicit” in HKSAR v Cen Zhi Cheng [2008] 3 HKLRD 96, a case relied on by the defence, and having indicated that he had referred to another case HKSAR v Lee Ho Yan [2010] 4 HKC 455, the magistrate rejected the submissions made by the defence. The magistrate did not accept the defence argument that, by saying “how to calculate”, Officer Ng had become the person who solicited.

13.  The magistrate did not clearly point out what the “immoral purpose” involved in the case was.

14.  The magistrate found that the prosecution had proved each and every element of the offence and convicted the appellant as charged.

Grounds of appeal

15.  The grounds of appeal put forward by Mr Yuen, Counsel for the appellant were, in essence, that the conviction was rendered unsafe and unsatisfactory by the following: (1) the magistrate neither considered nor analyzed the elements of the offence and also failed to properly consider whether or not the appellant had solicited for an immoral purpose; (2) the magistrate erred in using what the appellant allegedly said to the arresting officer for the purpose of supporting Officer Ng’s testimony.

16.  As to (1), Mr Yuen stressed that from what Officer Ng said, until he asked the appellant “how to calculate”, there had been no “soliciting” “for an immoral purpose” at all. Adopting the analysis of “soliciting” in Cen Zhi Cheng, the appellant submitted that it was Officer Ng who solicited “for an immoral purpose”.

17.  On the other hand, the appellant submitted that even if the appellant had indeed solicited, the magistrate failed to consider whether or not she had solicited Officer Ng “for an immoral purpose”.

18.  Regarding “soliciting”, the appellant also complained that the magistrate, without informing the prosecution and the defence, had on his own accord referred to Lee Ho Yan, the facts of which were entirely different from those of the present case, and that the magistrate had failed to indicate which part of Lee Ho Yan he relied on. This, it was submitted, was unfair to the appellant.

19.  As to (2), the appellant submitted that, given the magistrate’s finding that what the appellant said under caution did not constitute an “admission”, the relevant reply was, in effect, “hearsay evidence” which the magistrate should not have relied on to support Officer Ng’s testimony.

A consideration of the submissions

20.  I respectfully agree with the definition of “solicit” given by McMahon J (as he then was) in Cen Zhi Cheng:

“14. In my view to solicit someone for an immoral purpose within the terms of section 147(1)(a) would include enticing or persuading that person to do some act or thing, or seeking from them some response, so as to bring about an eventuality or state of affairs which is sexually immoral.

15. I agree that however the word ‘solicit’ is defined, it does not, it seems to me, entail anything in the nature of the mere acceptance of another’s solicitation. In other words, there is a distinction to be drawn between an individual who is soliciting and an individual who responds to that solicitation by doing some act or thing.”

21.  If there is nothing wrong with the magistrate’s finding that the testimony of Officer Ng was credible, then, based on what Officer Ng said, I fail to see how Officer Ng would, by asking the appellant “how to calculate”, have become the person who solicited. In all the circumstances described by Officer Ng, it is clear that the appellant had solicited Officer Ng to have sexual intercourse with her at a price of $6,000.

22.  The magistrate did not expressly state that, as an arbiter of fact who had taken into account the standard held by the general public of Hong Kong, he found that it was “immoral conduct” to earn money by way of “prostitution”. Nevertheless, if what Officer Ng said was true, then in the circumstances he described (namely, he and the appellant met by chance, the appellant took the initiative to ask Officer Ng if he needed someone to keep him company by way of “rent[ing] a hotel room and get[ting] laid”, and when Officer Ng asked how much, the appellant replied that she charged $6,000), the appellant was in my view clearly engaged in prostitution, with a view to earning money with her body. Even in the open-minded society of Hong Kong nowadays, the appellant’s conduct would still be regarded as soliciting Officer Ng for an immoral purpose.

23.  The question is whether the magistrate could safely accept Officer Ng’s testimony. The appellant did not testify, although the defence put its case to Officer Ng during cross-examination. The magistrate was satisfied that the appellant had made the relevant response under caution by the arresting officer. What the appellant said under caution knowing that she was suspected of having committed the present offence, namely that it was because she had to raise her two children that she “[came] out to work to make money”, was a response which in my view might be taken as an admission. Be that as it may, as the magistrate found that the appellant had made no admission, he should have excluded the said response. Cautioned statements form an exception to the rule against hearsay. An oral statement which was not an admission became hearsay evidence, and it was not open to the magistrate to rely on hearsay evidence to support Officer Ng’s testimony.

24.  Since the magistrate made the above error in principle, his findings on the reliability and credibility of Officer Ng’s evidence are in my view open to question, and the appellant’s conviction is unsafe and unsatisfactory.

25.  I also wish to emphasize that the magistrate had on his own accord considered Lee Ho Yan, the facts of which (the defendant initially advertised on the internet that she was a sex worker, and subsequently had a meeting with an undercover agent) were fundamentally different from those of the present case. A magistrate who has considered other cases should inform both the prosecution and the defence so that they can respond as necessary.

26.  Furthermore, the magistrate failed to indicate which part of the judgment of Lee Ho Yan he had referred to and how the relevant part had influenced or supported his view. What he did was improper.

27.  For the above reasons, I have allowed the appeal against conviction, quashed the appellant’s conviction and set aside the sentence.