R. v. POON PING KWOK AND ANOTHER

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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. This is the judgment of us all.

2. On the 15th May last year Poon Ping Kwok ("the 1st defendant") and Lee Hang Yuk ("the 2nd defendant") were convicted by Judge Surman in the District Court jointly of two charges connected with prostitution and severally of two further charges each of doing an act tending and intended to pervert the course of public justice. They now, with the benefit of counsel, seek leave to appeal against their convictions.

3. In February 1990 the 1st defendant, a Superintendent of the Royal Hong Kong Police, held the office of Assistant District Commander Central Crime. Under his command was a district crime squad composed, in addition to others, of the 2nd defendant, who is a Detective Sergeant, another Detective Sergeant, No. 9944, and a Detective Constable, No. 7017, Lo Chi Ming ("Lo").

4. On the 13th of the month these three and the 1st defendant were having lunch in a restaurant in Wyndham Street in Central. They had invited a well known jockey, Mr. W.H. Tse, to join them, as indeed they had done on a similar occasion at the Hong Kong Hilton some two to three weeks earlier. During the course of the conversation, which appeared mainly to concentrate on the prospects of particular horses in forthcoming races, Lo mentioned the imminent arrival of some foreign prostitutes in whom, when asked, the jockey expressed an interest. Lo then made a further enquiry as to whether the jockey would also be interested in a local girl later that same day. His affirmative answer cannot have been entirely unexpected, for the evening before Lo had already made arrangements through his triad associates for the provision of such a girl that afternoon. She was to be brought by those associates to Star Ferry by Queen's Pier.

5. Accordingly the entire party repaired to the Star Ferry, the 1st defendant separately paying a visit to Central Police Station on the way, so that the ultimate destination, the San Diego Hotel in Wanchai, could be made known to the girl and her escort. The jockey was driven to the hotel in his own Mercedes, by the courtesy of the 1st defendant's instructions by the 1st defendant's own police driver, who had earlier acting on like instructions parked the jockey's car over lunch in the Central Police Station compound. The police officers entertained themselves in the coffee shop of the San Diego Hotel while the jockey was in his turn entertained by the girl in a room upstairs, paid for, although possibly not with previous intention, by the 2nd defendant. Some 45 minutes later the jockey re-joined his police friends while the girl went her own separate way. On that day she was still only 17 years of age, one of the factors which led ultimately to the first charge, that the two defendants together with Lo and others conspired to procure a girl under the age of 21 to have unlawful sexual intercourse, contrary to common law and s. 132(1) of the Crimes Ordinance, Cap. 200.

6. It has been long established, having regard to  R. v. Prince (1875) LR 2 CCR 154, that it is no defence to a charge of unlawful sexual intercourse with an under-aged girl to establish that the defendant honestly and even with good reason believed her to be over the prescribed age. The learned editors of the 6th edition of Smith and Hogan on Criminal Law at p. 442 suggest that the same principle of Prince would likely be applied to the offence of procuring a woman under 21 to have unlawful sexual intercourse, although there seems to be no direct authority. It may be for this reason that at no time below was attention ever directed to the defendants' knowledge of the girl's age. It may have been thought to be immaterial. But indeed it was not. To sustain a conviction on that charge it was essential to show that the defendants were aware that the girl to be procured was to be a girl who was under the age of 21. If authority is wanted for this otherwise self-evident proposition it is to be found in R. v. Churchill [1967] 2 AC 224 which concerned the use in road vehicles of uncustomed heavy oil. The question posed for their Lordships in that case was "whether mens rea is an essential ingredient in conspiracy to commit the absolute offence charged in count 2". In a speech, with which their other Lordships all concurred, Viscount Dilhorne said at 237:

" In cases of this kind, it is desirable to avoid the use of the phrase 'mens rea', which is capable of different meanings, and to concentrate on the terms or effect of the agreement made by the alleged conspirators. The question is, 'What did they agree to do?' If what they agreed to do was, on the facts known to them, an unlawful act, they are guilty of conspiracy and cannot excuse themselves by saying that, owing to their ignorance of the law, they did not realise that such an act was a crime. If, on the facts known to them, what they agreed to do was lawful, they are not rendered artificially guilty by the existence of other facts, not known to them, giving a different and criminal quality to the act agreed upon."

7. Since no offence is committed by procuring for a similar purpose a woman who is over 21 it was incumbent on the Crown to show that at some stage, at least before the procuring was complete, the 1st defendant and 2nd defendant were aware that the girl was under that age. There was, however, no evidence adduced to discharge that burden. So much for the 1st charge.

8. The foreign prostitutes, - there were five and they were British, - arrived in Hong Kong in the late afternoon of the 15th February. That same evening the 2nd defendant engaged the services of one and the following evening the services of another, subsequent to a dinner and visit to a disco attended, amongst others, by the 1st defendant and all five girls. The 2nd defendant and Detective Sergeant 9944 took one girl each to separate rooms in the guesthouse where the girls had been lodged.

9. Meanwhile, on the afternoon of the 16th, the jockey had been treated in the same way as he had on the afternoon of the 13th, save that on this occasion it was a miss Tracey Lambie, one of the British girls, who was provided for his amusement. Lo had made the arrangement earlier that day with one Lee Tsang Kan, a triad associate, who was the person responsible for bringing the girls to Hong Kong. Again the San Diego Hotel was used and again the 1st defendant, 2nd defendant and Lo were present downstairs throughout, presumably to emphasize to the jockey the true provenance of the favours he was receiving. Protestations of mere curiosity, as the judge below held, are just not credible. From this incident arose the 2nd charge, albeit it was no. 3 on the charge sheet, that the two defendants, together with Lo and others, exercised control, direction or influence over Miss Lambie for the purpose of her prostitution, contrary to s. 130(1)(a) of the Crimes Ordinance.

10. It is common ground that although there may often be occasions when the customer of a prostitute may be said to exercise control, direction or influence over her, as for example when he tells where to meet him, the section is not intended to cover conduct of that kind. Something more is required, although we feel it would be undesirable, if not impossible, to attempt a precise definition of its nature. In R. v. Woo Shu Wai Mag. App. No. 845 of 1987 unreported, Addison, J., referring to the presumption in s. 137 of the Ordinance where similar words are used, said this:

"These three words, in my opinion, are designed to catch those who are in fact exercising power of a kind over a woman where the purpose of them doing so is to further the girl's acts of prostitution. It is not intended that these words should be dissected but looked at in a common sense manner and as a whole with one eye firmly on the purpose of the legislation itself."

A similar line was taken in England in R. v. O. [1983] Criminal Law Review p. 401 where it was suggested that there was a need for something in the way of persuasion or compulsion; mere encouragement was not enough.

11. The judge below was satisfied that in this instance there was joint responsibility. He said:

"The conversations both before and after the intercourse session, the directions that were given to the prostitute from the table where he was seated, and the agreement that he knew exactly what was going on, all make it perfectly clear that the 1st defendant with the others (the 2nd defendant and Lo etc.) were exercising influence and direction over the prostitute in the San Diego Hotel that afternoon."

With every respect to him, although there is room for ample speculation as to exactly how far the 1st and 2nd defendants were involved, on the evidence that was actually before the judge no reasonable tribunal could, in our view, be sure that as regards Miss Lambie the two defendants did anything which took them beyond the role of mere customers, albeit the services they thus engaged were for the benefit of a third party. The control within the section was clearly in Lee Tsang Kan, who had recruited the girls in England, transported them to Hong Kong and here made arrangements for their accommodation and employment. The conduct of the defendants throughout showed a cynical disregard for their responsibilities as police officers, but it did not extend to the control, direction or influence of a prostitute within the section. We need therefore not go on to consider, as was questioned by counsel, whether the judge's simple observations on corroboration at the commencement of his reasons for verdict were a sufficient discharge of his duties in that respect.

12. The British prostitutes had only a short run here. They were arrested on the 22nd February. On information obtained from them and from Lee Tsang Kan the police mounted an investigation under Superintendent Pierce. On 28th March the 2nd defendant and other police officers, - but not the 1st defendant who was at that time in no way thought to be concerned, - were called to make statements. A charge of doing an act tending and intended to pervert the course of justice in relation to the statement then made by the 2nd defendant was dismissed by the judge below. We are concerned with similar charges based on a further statement made by the 2nd defendant on the 2nd April, and two statements made by the 1st defendant, one on the 2nd April and the other on the 4th April.

13. The 2nd defendant in his statement was, to say the least, sparing in his account of the events in February and who was involved in them. Mr. Hingorani, who appears for him, suggests that the deliberate omissions were, in the particular circumstances, not sufficient to amount to false and misleading statements as charged. Whether that be so or not, the statement to the Superintendent that he went straight home from the disco on the 16th and his answer to the question as to whom of those who dined with the-girls that night had sexual intercourse with them, "I don't know", was clearly untruthful and intended to deceive Mr. Pierce.

14. The 1st defendant, learning from the 2nd defendant, as he must have done the same day, that the second statement revealed his own presence at the dinner on the evening of the 16th, immediately made out a statement of his own motion and forwarded it to Mr. Pierce. He confirmed the contents of that statement when making a second statement to Mr. Pierce on the 4th April. They contain lies and present a complete distortion of the true nature of his involvement with the British girls. They omit any mention of the events of 13th February.

15. Mr. Keane, Q.C., who appears for him, in a series of sophisticated arguments has sought to persuade us that in assessing the 1st defendant's intention with regard to those two statements the judge mis-directed himself by firstly relying on a wrongful assumption of the defendant's guilt of. the earlier charges, secondly by failing to appreciate that a person under investigation may well tell lies from panic, embarrassment or other innocent reason and thirdly by ignoring the defendant's good character when assessing the truth of the explanation he gave for the untruthful and misleading contents of the statements. We are not so persuaded. The character of the 1st defendant was well before the judge below and in our view fully appreciated by him. It is then only necessary simply to read the two statements in the light of the known events and circumstances to appreciate that they could only have been a calculated attempt, whatever the emotional state of the 1st defendant at the time, to deflect Superintendent Pierce from the true course of his investigations.

16. On the 16th May the jockey was arrested. On the 17th he gave a long and detailed statement to a Senior Inspector of Police as to his involvement in these affairs. Before leaving home that morning to do so he had been telephoned by the 2nd defendant and during the course of giving his statement had two further telephone conversations with the 2nd defendant, both of which were recorded by the police on tape. There is a curious divergence between the evidence of the jockey and that of the Inspector as to whether the questions which the jockey asked the 2nd defendant during the course of those telephone calls were or were not coached by the Inspector. But be that as it may, the substance of what the 2nd defendant was then urging upon the jockey was not to say or remember anything at all so far as the police were concerned.

17. Mr. Hingorani submits that although thus intended to pervert the course of justice the 2nd defendant's efforts could not in any event have ever done so because the police already had from the jockey the information which the 2nd defendant was asking the jockey to conceal; his actions therefore did not "tend" to pervert, as the statement of offence alleged. With the greatest respect that submission is misconceived. As the judge correctly observed:

"these particular contacts by their nature plainly had the tendency to interfere with the investigation's proper progress".

Once made with the appropriate intent the offence was complete. It is quite immaterial that the intent could never have been fulfilled. Lord Reid put this clearly in R. v. Smith [1975] AC 476 at 498 when he said:

"If doing something with intent to procure a certain result is an offence you can certainly be guilty of that offence if you do that thing with that intent although in the circumstances it was not possible to procure that result".

18. For all these reasons, therefore, we allow the applications for leave to appeal against conviction. We treat this hearing as the hearing of the appeals themselves and allow the appeals in respect of charges 1 and 3 quashing the convictions thereon and setting aside the sentences of imprisonment imposed. We dismiss the appeals in so far as they relate to the convictions on charges 6, 7, 8 and 9.