HKSAR v. TANG WING SZE AND OTHERS

HCMA477/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 477 OF 2007

(ON APPEAL FROM KCCC 3453 OF 2006)

----------------------

-------------------------

--------------------------------------------------

REASONS  FOR  JUDGMENT

------------------------------------------------

Background

1. The four appellants were each charged with one count of ‘Assisting in the Management of a Vice Establishment’.  They pleaded not guilty and were all convicted after trial.  They were sentenced to 7 months’ imprisonment each.

2. They sought to appeal against the convictions and sentences.

The prosecution case

3. PW1, a police officer, had been assigned the duty to investigate into loan sharking activities between Hong Kong and Macau.  His earlier attempts to gather evidence in 2003 and 2004 had failed because he did not have a “job” to support his requests for a loan.  Then he found a position in Temple Street Sauna as a waiter.  While his investigation for illegal borrowing activities remained fruitless, he discovered vice activities at the Sauna.  Later, arrangement was made for him to be transferred to another team which was coincidentally carrying out investigation into related vice activities.  That operation turned overt in June 2005.   PW1 had testified under immunity and he gave evidence according to his diary records which had covered the events in detail, but there was no reference to the loan sharking activities. 

4. In the Statement of Findings, the magistrate had carefully summarized the evidence of the prosecution witnesses, particularly PW1, and had evaluated the evidence against each of the appellants.

5. As to the defence case, the magistrate had noted that none of the appellants testified and no witnesses were called.  The ‘theory’ put forward by the defence was that because PW1 had failed to come up with evidence about loan sharking activities, he proceeded to make up evidence of vice activities at the Sauna against the appellants.  The defence also argued that the alleged physical contact could have been accidental, and further that what had happened between the masseuses and the customers would be private matters without the involvement and knowledge of the management of the Sauna.

6. The magistrate had apparently considered all the evidence and submissions with care.  He came to the conclusion that PW1 and the other prosecution witnesses were honest and truthful witnesses.  The magistrate made the relevant findings of fact which he had clearly stated in paragraph 41 of his Statement of Findings.  He also dealt with the usual key concepts in these type of cases : assisting in the management, kept and wholly or mainly.  The magistrate found the charges proved against each of the appellants.

7. The magistrate had also explained why he adopted 8 months as the starting point for sentence and the reason for the 1 month discount granted to the appellants.

The respondent’s stance

8. Concerning this appeal, parties had asked for a mention date before the actual appeal hearing because of certain special circumstances.  What transpired was that Mr William Tam, Senior Assistant Director of Public Prosecution, had written to this count stating that he would not oppose the appeal. 

9. Mr Tam explained in his written submission that that the prosecution against the four appellants was part of a series of prosecution which arose from the same operation in which PW1 had taken part.  The same undercover officers had also given evidence in the District Court trial of DCCC1280/2005.  During that trial, the wife of one of the defendants, assisted by her friend, had managed to record the conversations of some of the prosecution witnesses with other police officers inside the witness waiting room.  Those recordings had become part of the defence case during the cross-examination of the officers concerned.  Deputy Judge Jenkins had seriously queried the credibility of the officers involved, and had ruled, in a half way submission, that there was no case for the defendants to answer.  Consequently, the defendants were all acquitted.

10. Mr Tam pointed out that the prosecution case relied heavily on the evidence of the two undercover officers who were involved in the District Court trial, and they had played the role of customers in the case against the present appellants.  Obviously, the magistrate had acted on their testimonies in arriving at the convictions. 

11. Considering the authorities of R v Maxine Edwards [1996] 2 Cr.App.345 and R v Lloyd George Fraser [2003] EWCA Crim.3180, Mr Tam took the view that the convictions of these appellants would therefore be unsafe and unsatisfactory.

12. In all the circumstances, particularly the fact that the appellants had already served part of the sentences, Mr Tam said he would not wish to oppose the appeal.

Result

13. Having read the relevant documents, especially the Ruling by Deputy Judge Jenkins dated 4 February 2008, I took the view that Mr Tam was right in not opposing the appeal.  Although the hearing was scheduled as a mention hearing, the issues were clear and the concession appropriate, I see no reason why there should be any further delay.

14. Therefore, with consent of the parties, I treated the mention as the hearing of the appeal itself and allowed the appeal on the convictions.  I would quash the convictions, dismiss the charges and set aside the sentences imposed.