THE QUEEN v. LOK MAN CHIU AND OTHERS

IN THE SUPREME COURT OF HIGH COURT

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1180 OF 1989

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BETWEEN

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J U D G M E N T

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1. Each appellant pleaded not guilty to two charges: One in each case alleging assisting in the management of a vice establishment, and the other in each case of living off the earnings of prostitution. The A and B charges related to the 1st appellant, C and D to the 2nd and the other two to the 3rd. They were tried together. A number of witnesses gave evidence for the prosecution but no evidence was called on behalf of any of the defendants. They were represented throughout the trial by the same counsel.

2. The principal prosecution witness was one of the prostitutes upon whose earnings it was allegea each defendant had been living. The other prostitutes named in the charges did not give any evidence. The prostitue who gave evidence said, as regards the 1st appellant, that he had agreed to make arragements for her prostitution in the middle of 1988. Her evidence was that she had sought him out for that purpose and cross-examination of her revealed that she had one purpose in mind and that was to make money. She and the 1st defendant had a discussion about the fees which she would charge, and the place where she would work as a prostitute.

3. On her 1st day after serving six customers, she received $1800. Subsequently, on a number of occasions when she acted as a prostitute the 1st defendant received some financial benefit from her conduct. The arrangement was flexible in that sometimes the money paid by the customers was paid to the 1st defendant and sometimes it was paid to the prostitute herself. On one occasion, she had to seek medical attention and the 1st defendant lent her money to meet the medical bill. In return he charged her interest at an exobitant rate. In mid September 1988, the 1st defendant told her to act as a prostitute for a customer introduced by the 2nd defendant, She agreed, did so and gave the money she received to the gnu defendant. She said that she met the 3rd defendant shortly after the meeting the lst appellant, that the 3rd appellant was the first man she had sex with as a result of introduction by the 1st apellant, and that subsequently ne sometimes introduced customers to her. Both he and the 2nd defendant received a financial benefit from the moneys she earned as a prostitute.

4. That bascially was the evidence which she gave relating to the earnings charges. The vice establishment charges related to premises known as Kam Sha Villa in King's Road. The prostitute said in evidence that it was in those premises that she worked as a prostitute under arrangements made for her to meet clients by one or other of the defendants. Other prosecution witnesses gave evidence of prostitution on the premises obtained as a result of police undercover activity. The prostitute's evidence was that each defendant assisted in the management of the prostitution business being conducted on those premises.

5. The learned magistrate convicted each defendant on each charge he faced and ordered that the 1st appellant and the 2nd appellant be fined $5,000 each in respect of the vice establishment offence and sentenced each to imprisonment for 6 months in respect of the earnings offence. Taking the view that the 3rd defendant's involvment was not as extensive as that of the other two, he finend the 3rd appellant $4000 in respect of the vice establishment offence anu sentenced' him to imprisonment for 4 months suspended for 2 years in respect of tile earnings offence.

6. In their appeals against conviction they each rely on` four grounds. The first ground is that the learned magistrate erred in law by failing to warn himself that the evidence of PW1, the prostitute, was inherently dangerous and required corroboration. In respect of this ground Mr. McCoy relied on The Queen v. Leung Yan [1989] 1HKLR 303. In that case it was held that where a woman volunteers to act as a prostitute with the intention of persuading, encouraging and assisting a man to live off her earnings, she may be an accomplice. Here there was evidence that this prositute did so volunteer with such an intention so that the learned magistate shoula have considered whether she was an accomplice and, it so, tnen warned himself of the dangers inherent in accepting the evidence of a witness in that category. It way well be that if the learned magistrate had considered this question that he would have decided that no warning was necessary or, that although a warning was necessary he was still able to find as he did notwithstanding the lack of corrobration of her evidence in relation to the earnings charcjes. As it is not possible to say that he would necessarily have come to the same conclusion had he considered the accomplice issue, the convictions on tile earnings charges cannot be sustained.

7. In relation to the vice establishment charges, there was other evidence showing the nature of the business being conducted on those premises. But there was no evidence corroborating the evidence of the prostitute about each defedant's relationship to those premises. However, since she was not an accomplice in relation to those offences, there was no need for the magistrate to warn himself about the danger of acting on her evidence alone in relation to those charges.

8. Mr. McCoy, however, submits that because the witness fell into a certain category in relation to the earnings charges, the magistrate should have looked at her in the same way in dealing with the vice establishment charges. He submitted that it was unrealistic to treat her evidence differently since the evidence she gave in relation to the vice estaplishment charges was intertwined with the evidence which she gave in relation to the earnings charges. There was, however, no need, in law, for the magistrate to consider this question in relation to the vice establishment charges. Consequently I do not see that the magistrate's conviction of the appellants in respect of those charges is open to challenge.

9. In the result the appeal, in so far as the earnings charges convictions are concerned is allowed. Those convictions and sentences will be quashed.

10. There was an additional ground of appeal which related solely to the 2nd defendant arising out of the fact that he was absent for part of the trial. The length of his absence was about an hour or so. The court was adjourned for about half an hour to await his arrival. When he had not arrived at the expiration of that adjourned period the court decided to proceeu with the trial in his absence. He subsequently appeared anu his counsel made an explanation to the effect that he had been delayed in a traffic jam in one of the tunnels. Mr. McCoy has submitted that, although the authorities show that a trial can proceed in respect of otter defendants while a defenuant is absent, it is a material irregularity, if it proceeds and deals with matters affecting the absent defendant unless he has consented to that course being followed or has waived his right to be present during the presentation of that evidence.

11. Some evidence affecting the 2nd defendant was given during his absence. But it was evidence which affected the allegations concerned with the earnings charges and was not evidence necessary for the purpose of the magistrate's finding that he was assisting in the management of the premises as a vice estabishment. The evidence taken which affected the 2nd defendant during his absence was not evidence which in any way prejudiced his fair trial on the hearing of the vice establishment charges. Accordingly, I see no reason in that ground to disturb the magistrate's decision to convict in respect of the vice establishment charges.

12. The other grounds of appeal relied on relate only to the earnings charges. As I have already found that the first ground is sufficient to set those convictions aside, it is not necessary for me to deal with those other grounds.

13. There is, however, a further ground of appeal in respect of the order which the magistrate made confiscating certain articles which were seized by the police in the course of their raid on the premises found to have been managed as a vice establishment.

14. Section 153 of the Crimes Ordinance empowers a police officer who reasonably suspects that any premises are being kept as a vice establishment to seize and detain anything found in the premises which appears to him to be used in, or for, or in connection with the commission of an offence under Section 139, that is, an offence in connection with the keeping or managing of a vice establishment. In this case, the exhibits listed as R1 to Z4 were apparently so seized.  But sub-section 2 provides that if any in proceedings for an offence under Section 139, a magistrate is satisfied that anything in the possession of the court or magistrate or the police has been used in, or for, or in connection with the commission of an offence under Section 139, the magistrate may order it to be forfeited to the Crown whether or not any person has been convicted of an offence under Section 139.

15. Some of those exhibits, namely S2, T2, U2, W2 and Z4 were either television sets or viueo recorders. But there is nothing in the record indicating that the magistrate was satisfied that any of those articles had been used in, or for, or in connection with the commission of an offence under Section 139. On the face of it, therefore, the confisication order appears to have been arbitrarily made. For that reason, it seems to me that the order was improperly made and should be set aside. I do set it aside and order that those exhibits be returned to the person from whom they seized.