HKSAR v. LEUNG KWOK HUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1996, No. 703
(Criminal)

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J U D G M E N T

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Mortimer, V.-P. (giving the judgment of the Court) :

1. On 26 November 1996 the applicant was convicted of an offence of living on the earnings of prostitution by His Honour Judge Gould in the District Court after trial. On the same day he was sentenced to 12 months imprisonment. Through Mr Buchanan who represents him on this application he applies for leave to appeal against that conviction. His application for leave to appeal against sentence has been abandoned because by the time this application has been heard, his sentence has been completed.

The history

2. The offence took place in July 1996. It is said in the particulars of the offence that he lived wholly or in part on the earnings of prostitution of Wong Yuk, alias Lo Kam-chan.

3. Wong Yuk came to Hong Kong on about 9 July. The purpose of her visit on false papers provided by others was to provide sexual services in Hong Kong for money. The prosecution alleged that the applicant assisted her in this, or rather more, she was under his direction.

4. The evidence consisted chiefly of the evidence of Wong Yuk, who gave evidence under immunity, and police evidence of surveillance. The result was that the applicant, according to Wong Yuk, took her to certain villas. Under his direction, she went in, provided sexual services, and received money which she handed over to the applicant. There were a number of these occasions which the judge accepted and which were the subject not only of evidence from the girl but also were the subject of supporting evidence of various kinds - particularly surveillance - either simply the evidence of an ICAC officer of what he saw, or of what other officers had filmed. The judge, having considered these matters, convicted.

The application

5. The applicant, through Mr Buchanan, submits for a number of reasons that the reasons for verdict are themselves flawed and that therefore the conviction ought to be overturned. The first submission he makes concerns the judge's view of the evidence of the girl. The judge said:

"From my remarks so far it will be seen that I do not regard her as a reliable witness as to detail. This does not mean that her evidence is entirely without use. I do not believe that she has made the whole thing up. I believe that there was a meeting on 18 July attended by PW4 and PW5, and I should explain that the reason that D3 had no case to answer is because the suspect evidence from PW1 related, in D3's case, directly and starkly to the issue of identity.

In cases where I have no evidence other than PW1's own evidence, I am inclined to disbelieve her. But in circumstances where there is evidence from an independent source or at least evidence which concerns what PW1 had told me, then I am more inclined to look carefully at her evidence, and that is particularly so where her evidence concerns the basic structure - the skeleton - of what she told me."

6. Much reliance is placed upon that passage. It is suggested the judge thought her so unreliable that in the end such support as he found was not sufficient for a judge properly directing himself to convict. We have been invited to consider a number of passages of her evidence (in the transcript) in which she readily accepted that on other occasions she had lied, that she had made certain things up and that when it was convenient, she had admitted that she was lying. So it is against that background that we must look with some care to see on what basis the judge was able to accept some of this witness's evidence.

7. Further reliance is placed upon another passage. It appears on p. 4M of the reasons:

"I come to consider charge 2 against D1. There are obviously parts of PW1's evidence on which I do not rely. I cannot rely, for example, on the fact that D1 appeared on the first evening PW1 was in Hong Kong or that he and D2 took her out to dinner. I do not rely on the evidence that on 13 July D1 did bring a potential customer to PW1 but she refused. Nor can I accept that the first time she took a customer at the instigation of D1 was on the night of 17 July."

Mr Buchanan submits that having decided to approach the witness in the way the judge had described so far, there was nothing that could support the evidence of that witness to enable him properly to convict the applicant.

8. The judge turned then to consider what support there was and he considered that the witness's story had been confirmed in some respects. There were in fact four different ways in which the judge thought the evidence had been supported and upon which he could rely to differing degrees.

The tapes

9. He said

"First, there are the surveillance tapes, P3(A) and P3(B)."

10. Mr Buchanan submits that the girl's story is not supported sufficiently by the surveillance tapes. He suggests that although the tapes were obviously sufficient to support the girl's account that she was with the applicant, they cannot and do not support the allegation that there had been a transfer of money which the girl says she received for the sexual services given.

11. Further, Mr Buchanan says that the judge was quite wrong to hold against the applicant that his demeanour on the tapes demonstrated that his presence with the girl outside certain villas was not innocent. We now turn to consider those matters.

12. The applicant's case in cross-examination was that he was simply trying to be friendly with the girl and was driving her about on the times that he was seen and recorded.

13. How did the judge consider this matter? The girl said that she was introduced to the villa, taken there by the applicant, told to go in to provide sexual services, to collect money, thereafter bring the money back and, hand it over to him. That was the effect of her evidence. We have been able to see the tapes as part of the applicant's case and the respondent's case. They show the applicant and the girl outside villas in Hong Kong in his car with the girl either coming from or going into the villas where she said she provided sexual services while the applicant waited about outside.

14. The judge said that the tapes depicted that he was rather bored waiting around. He concluded that the purpose of his presence was not, as had been suggested, simply as a friend taking the girl about. This conclusion was one which he was entitled to reach on the simple basis that the tapes did not establish guilt but were sufficient to dismiss the suggested explanation for his presence of which there was no other evidence except that of the girl and the police officer. The judge thought there was some support for the girl's evidence in the tapes. He was entitled to accept them as support of her evidence.

The list of villas

15. Secondly, there was a piece of paper listing villas found on the applicant when he was arrested. He was not arrested until 22nd. Mr Buchanan submits that of itself could not establish this offence. Of course, of itself, it certainly could not. Did it tend to confirm what the girl had said? Of course, it did tend to do so in the absence of any other explanation.

The landlord's evidence

16. The third matter which the judge thought supported the girl was the evidence from the landlord that the applicant made enquiries concerning the renting of the flat in which the girl was accommodated although the papers were signed by someone else. It is minor support perhaps, but it is some support.

The 18 July meeting

17. Finally, the girl gave an account of a meeting on 18 July at which the applicant was not present. Was there support for this part of the girl's account?

18. There was circumstantial support for her account of the meeting from P. 4 and P. 5. Even though this evidence did not directly concern the applicant, the judge relied upon it as general confirmation of this part of the girl's evidence.

19. In those circumstances was the judge entitled to accept the evidence that he did accept? This is what he said:

"I do accept that D1 introduced PW1 to at least one customer before the meeting on 18 July and that for the hours of darkness after the 18 July meeting she still worked for D1, taking three customers altogether that night. Those visits to villas were covered by the video surveillance tapes, P3(A) and P3(B). The tapes confirm that she was in the presence of D1, although there was confusion in her evidence when she tried to match the particular villa to the particular scene shown on videotape."

The reference to the hours of darkness after the 18 July meeting is reference to the support from the tapes we have seen.

20. The judge's finding that he accepted that one customer had been introduced to the applicant before the meeting of 18 July was a matter which was supported by other surveillance evidence given by an ICAC officer in a statement which was read to the judge and not challenged. It showed that in the early hours of the 18th that the applicant had driven to Tung Choi Street and waited there outside a villa called "Lok Kung Villa" and the Tung Lok Building. The girl was seen coming into the car and being driven back to the flat which she occupied in Richview Mansion.

21. Subject to the other matters that the applicant has raised, in our view, the judge dealt with those matters quite properly and in a manner in which he fully took into account the obvious defects of this witness.

22. We have had the opportunity of considering the passages in the evidence where she admitted lying or deceiving. Those were matters upon which the judge clearly kept in mind when considering the case.

Good character

23. The next matter urged upon by Mr Buchanan is that the applicant was, until this conviction, a man of good character. He was a police officer with 17 years of unblemished service. It is submitted that the judge ought to have made reference to that and ought to have put it into the balance on the question of propensity.

24. This Court has said on many occasions that when a professional judge is sitting alone, he does not have to give himself the directions which a jury receives. Those are matters - unless there are indications to the contrary - he is assumed to have given himself. There is no reason in this case to think that the judge did not have the applicant's good character in mind when making this decision.

No evidence from the applicant

25. The next point taken is that the judge held it against the applicant that he had not given evidence in his own defence. The judge said on the matter:

"I should point out that D1 has not given me the opportunity of hearing evidence about this scenario, but I can say that I do not find the allegation credible."

The allegation that the judge was dealing with was this:

"In cross-examination it was suggested to PW1(the girl) on Dl's (the applicant's) behalf that he had had sex with her on 14 July, that she had asked for money but he did not have money, that they had sex together again in the early hours of 19 July and that D1 still did not pay and so PW1 got angry. The implication is, presumably, that PW1 has been giving evidence out of a vindictive grudge ..."

The suggestion that the judge put into the scale against the applicant the fact that he had not given evidence is one which is simply not supported by the judge's reasons. Of course, had he done so it would have been absolutely wrong. But the judge approached this point correctly. The allegations that had been made against the applicant by the girl, and supported in certain ways by other evidence, were unchallenged by other evidence. So it was open to the judge to accept that evidence if he was sure that it was correct.

Inferences

26. The judge did not refer to the inferences he drew from the primary facts. It is suggested that he should have done so. There is no reason why the judge should have referred to such inferences although judges often do.

Ought the judge to have decided whether the witness was an accomplice?

27. The final matter is this. No where in his reasons does the judge say in terms that the girl was an accomplice. Mr Buchanan submits that the issue whether or not she was an accomplice was raised at trial and in those circumstances it is the judge's duty to make a finding whether that witness was to be treated as an accomplice or not. He submits that not having made that finding, it must follow that the reasons were flawed because no one quite knows how the judge was approaching the witness.

28. The first issue is: does the judge have to make such a finding? In our judgment, the judge does not have to make a sterile finding to label a witness as an accomplice or not, since the abolition of the requirement that a judge has to give himself a warning about an accomplice's evidence. See s. 60 of the Criminal Procedure Ordinance.

29. What he must consider is the nature of the witness. Here it is quite clear that the judge approached this witness with great caution. He said so clearly in his reasons. Having done so, he then went on to consider the fact that she had admitted lying and that there were discrepancies. Then, he assessed what weight he should give to her evidence, saying:

"In cases where I have no evidence other than PW1's own evidence, I am inclined to disbelieve her."

Then he dealt with that matter in the way that we have set out.

30. It would be quite sterile in our view for a judge to have to decide whether a witness is an accomplice or not. We must look at the way in which the judge dealt with and assessed the witness. In this case, there can be no justified criticism of that. We would think it must be exactly the same when a judge is directing a jury. He need not label a witness provided he directs the jury properly as to the way they should approach such a witness's evidence.

31. For those reasons which we have endeavoured to set out, this application is refused.