THE QUEEN v. LEE TUCK CHI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 1421 OF 1988

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BETWEEN

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J U D G M E N T

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1. The Appellant pleaded not guilty to a charge that on 24th June 1988 at Sham Lam Villa in Shanghai Street he knowingly lived wholly or in part on the earnings of the prostitution of a certain female contrary to s. 137(1) of the Crimes ordinance ("the Ordinance).

2. The Prosecution evidence was that an undercover Policeman went to the premises at about 7.40 p.m. on 24th June. His doorbell ring was answered by the Appellant who immediately too him to room number 8 and alien asked if he would "like a girl for fun" When the officer said, "Yes", the Appellant then asked, "What hind?" The officer sought the Appellant's recommendation and his response was, "It's be better to get a Singaporean girl. Tile service will be very good and it is only $400." When the officer agreed the Appellant told him to stay in the room and watch a video cape whilst he went to bring a girl. The appellant left. The officer remained in the room and watched the video tape a pornographic movie. At about 8 PM the Appellant brought a girl into the room and asked the officer if she suited him. The officer said than she did whereupon the Appellant departed leaving the girl and the officer alone in the room. Tile girl told the officer to take a bath and he did. His evidence then continued:-

"After I bathed it was her turn to bath. When she came out after her bath I revealed my identity and showed her my warrant card. I told her to get dressed again...."

3. The office told the girl to remain in room 8.  He then went out to the corridor where he say the Appellant sitting at a counter. The Appellant said to him, "Now you've finished please make payment." The officer Paid and then revealed his identity to the Appellant. When the officer's colleagues came to the scene one of them searched room 8 and found a number of articled, among which were a pornographic video tape and a condom.

4. The Appellant's evidence was that when the office came he answered the doorbell, greeted him and, asked, "What's the matter. "The officer replied, "Is there any girl here?" He then took the officer to room 8 and asked what girl he wanted. The officer asked him to introduce one and he replied that there was a Singaporean girl who was a very good masseuse who'd only collect $400. When the officer agreed he left and returned with the Singaporean girl. He told her to give the officer a good massage and then left. Fourteen minutes later the officer cane out. The Appellant asked if he'd finished the massage whereupon the officer put $400 on the counter and revealed his identity. The Appellant said that that was the first time he had introduced the girl to anyone and that the arrangement between him and the girl, made at her suggestion, was that she would collect $400 from each customer and give him some advantage.

5. The learned magistrate accepted the police officer's version of his conversations with the Appellant and of what occurred in the room after the girl arrived. He found that the conversation between the Appellant and the officer indicated that both understood that "the service to be provided was sexual activity" and that the Appellant received payment of $400 form the officer. He found that there was no evidence rebutting the presumption under s 137(2) of the Ordinance and found him guilty. He convicted and sentenced him to imprisonment for four months.

6. In his appeal against conviction Mr. Buchanan, on behalf of the Appellant, relies on four grounds in support of he fifth ground that the conviction is unsafe and unsatisfactory.

7. His first ground attacks the ruling that there was a case to answer. In support of it lie submits that  -

(1)     the learned magistrate's definition of lewdness was wrong;

(2)    his approach to the submission of no case was wrong in that he looked at it from the point of view of a juryman whereas it is a matter for the judge; and

(2)    he should have looked at the charge itself which is an allegation of an offence contrary to s 137(1) of the Ordinance and that the presumption provisions, s 137(2), was not a relevant consideration at that stage.

8. As to (1): the preliminary submission was that the officer did not specifically say that the girl did appear before him naked. What the learned magistrate said as to this, however, was that whilst it might be lewd behaviour for a girl to stand naked in front of a strange man for the purpose of titillating his sexual desires, he had no doubt that ajjuror who accepted the prosecution evidence would draw the inference that the girl, naked or not, was offering herself as a participant in physical acts of indecency for the sexual gratification of a stranger. That conduct, according to R. V. Webb ([1964] 1 Q.B. 357, 366), the authority relied on by Mr Buchanan both below and on appeal, amounts to prostitution. There is no substance in this point.

9. As to (2):  Since the well-known test is whether a reasonable jury properly instructed as to its function could convict, what other approach could the learned magistrate adopt? There is no merit in this point.

10. As to (3): Mr. Buchanan submitted that since there is authority to the effect that a presumption Cannot operate unless the facts giving rise to it have been proved beyond reasonable doubt the learned magistrate was wrong to refer to it at a stage in the proceedings where it could not properly be found that any fact had been proved beyond reasonable doubt.

11. Where a court is considering whether the evidence establishes proof of guilt then no presumption can be called in aid unless the facts which give rise to it have been proved beyond reasonable doubt. Where, however, a court is considering whether the evidence establishes a case to answer, that is, whether a jury could convict, it is not called upon to make any finding as to whether the evidence raises the presumption but asks itself whether, if the jury accepted the Prosecution evidence, it could find that the facts necessary to raise the presumption have been proved beyond reasonable doubt. If a jury could so find then the court must consider whether there is a case to answer on the basis that the presumption forms part of the prima facie case at that stage of the proceedings. It was, therefore, quite proper for the learned magistrate to have regard to the presumption on a submission of no case.

12. I find no substance in this point and, therefore, no merit in ground l.

13. Ground 2 contends that the learned magistrate erred in law when he ruled that the conversation between the Appellant and the police officer raised the presumption under s 137(2).

14. The learned magistrate accepted the police officer's version of the conversations between the Appellant and himself and found that the arrangement discussed was the provision of a prostitute for the officer for $400. Proof of the Appellant's conduct in then bringing a girl to the officer for that purpose was sufficient to estatblish that he was directing the girl in a way which showed that he was encouraging and assisting her prostitution with the officer. Proof of such conduct raises the presumption under s 139(2). There is therefore no merit in this ground.

15. Ground 3 contends that at the close of the case for the Prosecution there was insufficient evidence to prove beyond reasonable doubt that -

(a)    the girl was a prostitute; or

(b)    the $400 was the earnings of prostitution; or

(c)    that the Appellant lived wholly or in part on those earnings.

16. As to (a) and (b) there was sufficient evidence. As to (c), the evidence raised the presumption under s 139(2) that he was so living, a presumption which remained until the Appellant (vide s 139(2)) proved the contrary. There is no merit in ground.

17. Ground 4 contends that "the learned "magistrate wrongly drew inferences of guilt from facts where such inferences were neither compelling nor the only reasonable inferences capable of being so drawn

18. The learned magistrate's finding that the Appellant aided and abetted the girl's prostitution was the only reasonable inference to be drawn from his unchallengeable primary findings of fact. As the Appellant failed to prove that he was not knowingly living on the earnings of prostitution the learned magistrate could not lawfully have done other than find him guilty.

19. As there is no merit in this ground there is no support for the contention that the conviction is unsafe and unsatisfactory. The appeal against conviction therefore fails.

20. The Appellant has also appealed against sentence.

21. At the time of conviction he was aged 49 with one previous conviction in 1983 for Assault Occasioning Actual Bodily Harm. He was fined $500.

22. Before sentencing him the learned magistrate obtained a probation officer's report on his background. That report disclosed that he is married with a daughter aged 14 and two sons aged 12 and 6. His wife deserted him in April this year. Thereafter the Appellant's increased responsibility in respect of his children was readily accepted and the Probation officer reported that "there was mutual love, concern and respect". The highly favourable report concluded as follows :-

"In sum, the gathered information indicates that [the Appellant] is a single parent with limited assets. He seemed to be a responsible father as he has been earning the family's livelihood by taking up odd jobs and at the same time rendering parental supervision to his children, whom he has maintained a harmonious relationship with. He was cooperative and sincere throughout the course of social enquiry."

23. I agree with Mr. Wilson, counsel for the Respondent, that the sentence in this case was neither wrong in principle nor manifestly excessive. But I think that the period the Appellant has already spent in custody, separated from his children, will have punished him sufficiently. In the expectation that his devotion to his children will be a sufficient motivation for him to avoid similar conduct in the future, I allow the appeal to the extent that, although no alteration will be made to the length of the sentence originally imposed, there will be superimposed an order that the sentence be suspended for 18 months from 4th November 1988.