ATTORNEY GENERAL v. IP PING KAN

No. 791 of 1987
(Magistracy Appeal)

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HEADNOTE

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Living on immoral earnings – presumption - proof of payment irrelevant.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 791 OF 1987

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JUDGMENT

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1. This is a case stated by Mr. Rodney Venning on the application of the Attorney General.

2. The respondent was charged with living on the earnings of prostitution, contrary to section 137 of the Crimes Ordinance. The case depended on the evidence of two police officers who, acting on instructions, went to Meilaiwah Villa, in Shanghai Street, within 30 minutes of each other on the night of 8th/9th April.

3. Each officer was shown to a room. The respondent entered the room and asked, “Boss, what sort of girl do you want to play with?" Asked what was available, he said “Filipina $230 including blow job, sexual intercourse. Local girls two prices $180 and $300 for intercourse.” There followed a short discussion as to the merits of the girls. When each officer said he would have a $300 girl, the respondent told him to wait.

4. In the case of PC19921 the respondent later showed a Chinese girl, Ng Siu-yung, into the room and asked him if she was "O.K.". When the respondent left, the girl took off her clothes and showered; she told the P.C. to do the same.

5. At this point there was a knock on the door and an announcement that it was a room check. The girl told the P.C. to say they had met at a disco and not to tell the police that she was a prostitute.

6. The officer had not paid the girl, nor had he been asked for rental for the room.

7. The other P.C. was still waiting for a girl when the police raiding party knocked at the door.

8. Both officers later identified the respondent.

9. Following a submission of no case the magistrate made the following ruling: -

“The section makes it an offence to live wholly or in part on the earnings of prostitute. The charge defendant faces is that he did live wholly or in part on the earnings of the prostitution of Ng Siu-yung. But on the evidence of the PCs NG Siu-yung did not on the 9.4.87 have any earnings because the receipt of those earnings was pre-empted by the raid. The ingredients of the offence are thus not present. As counsel has contention the actual reas did not exist and I have to support that contention.”

10. The question of law posed for this court is :-

“Was I correct in finding that the respondent had no case to answer on the charge of living on the earnings of prostitution?”

Mr. Kilgour, for the appellant, submits that the magistrate ignored section 137(2), which provides :-

“For the purposes of subsection (1), a man who lives with or is habitually in the company of a prostitute, or who exercises control, direction or influence over a woman's movements in a way which shows he is aiding, abetting or compelling her prostitution with others shall be presumed to be knowingly living on the earnings of prostitution, unless he proves the contrary.”

11. He says that there being uncontradicted evidence that the respondent was exercising control, direction or influence over the girl whom he ushered into PC1992's room and as, in the light of the earlier conversation with the P.C., he must have known that the object of the exercise was prostitution, he is caught by the subsection and is presumed to be knowingly living on the earnings of prostitution, unless he proves the contrary.

12. Mr. Buchanan, counsel for the respondent, makes two points in reply. There is nothing in the record, he submits, that indicates that Crown was relying on subsection (2) and it is therefore unfair to the respondent to take the point on appeal. He cites in support R. v. IP Kam Shing[1], in which Briggs J., giving the judgment of the Full Court, said at p. 702 :-

“Curiously enough the prosectuion in the court below did not rely upon this subsection. I do not this in consequence that it can be relied upon in this court in the circumstances of the present case.”

13. It may be that that case can be distinguished on the facts but, in any event, the magistrate's record in this case plainly states that, in reply to the submission of no case, the prosecutor pointed out to the magistrate that there was evidence that the respondent was exercising direction over the movements of the girl.

14. Mr. Buchanan's second submission was that there was insufficient evidence that the respondent knew that Ng Siu-yung was a prostitute. He relies on her evidence that she asked the P.C. to say he met her at a disco that evening. That is a plea entirely to be expected in the circumstances and pales into insignificance when compared with the evidence of the police officers that the respondent asked them what kind of girl they wished to “play with”.

15. The authorities are canvassed by Addison J. in R. v. Woo Shu-wai[2], a case in which the facts bear a remarkable similarity to this one.

16. He rejected defence counsel's contention that: -

“‘direction’ involves something more than merely guiding a prostitute into a room where there is a client waiting and that there must be in existence in the relationship between the alleged offender and the prostitute some difference in status which confers upon the defendant an authoritative role whereby he can authoritatively pronounce some direction which the prostitute may or may not accept.”

17. He concluded :-

“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 looked at in a common sense manner and as a whole with one eye firmly on the purpose for the legislation itself. Dictionary meanings were supplied to this Court. 'Direction' is defined in the shorter Oxford English Dictionary as

'the action or function of directing, aiming, guiding, instructing or administering; conduct; instruction; management; administration.'

It would in my opinion be defeating the object of the legislation to have to prove of necessity that there exists some distinction in the status between the person giving the direction and the person receiving it. Any conduct of a kind which results in aiding and abetting prostitution by the defendant, which conduct is employed by him to further the continuance of or to aid and abet prostitution whether by control, direction or influence or by any other Victorian word which would today establish that the defendant is engaged in ensuring that the girl continues in prostitution would fall within this presumption.”

18. There was abundant evidence in the present case that the respondent knew what services the girl was going to provide and therefore that she was a prostitute. The evidence that he was responsible for bringing her to the P.C.'s room is sufficient, in these circumstances, to bring him within the sub-section.

19. The fact that no money changed hands is irrelevant. There is prima facie evidence that h~ was exercising control, direction or influence over a woman's movements in a way which showed he was aiding and abetting her prostitution with others. There is therefore a burden upon him to show that he was not living wholly or in part on the earnings of a prostitute.

20. The answer to the question posed is in the negative. The appeal is allowed and the case remitted to the magistrate for his further determination of the matter.

21. If, having heard all the evidence, including that of the respondent, should he choose to give evidence, the magistrate is satisfied beyond reasonable doubt that the respondent was controlling the girl, he will have to go on to consider whether he has rebutted the presumption that he was living on the earnings of a prostitute.