R. v. AU SING KEE and Another

IN THE COURT OF APPEAL

1995, No. 70
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The applicants are husband and wife. In the proceedings below A1 was D1 and A2 was D3. It will be convenient to refer to them in a similar manner to at their trial. Both applicants seek leave to appeal against their convictions.

2. There were altogether nine charges. At an early stage submissions of no case to answer were successfully made in relation to the first two charges so it is not necessary to consider them further.

3. D1 and D3 were acquitted on charges 8 and 9.

4. The 3rd charge of living on the earnings of prostitution contrary to s137(1) of the Crimes Ordinance was laid against all the defendants.

5. The 4th charge of blackmail was laid against D1 and D3 as was the 5th charge of criminal intimidation.

6. The 6th charge which was a further charge of blackmail was brought against D1 and D3.

7. The 7th charge of procuring a woman under the age of 21 to have unlawful sexual intercourse with a 3rd person was brought against D3.

8. These defendants were convicted by Deputy Judge Li as he then was on all of these counts after a trial.

9. The facts were comparatively simple.

10. PW2 was the main prosecution witness. She was aged 16 at the time of the offence. Notwithstanding her tender years PW2 had worked as a prostitute for some time before the events in question.

11. On 4 November 1992 she claimed to have agreed to work for D1 and D3 as a prostitute. Her motive for doing so was to enable her to repay a debt she owed D3. The modus operandi was that she would be told on the telephone to attend customers at hotels and boarding houses and provide sexual services to them.

12. D1 and D3 received a substantial part of the proceeds of this prostitution. The 3rd charge relates to this complaint.

13. After working for a few days she informed D3 that she did not wish to continue this work. A group of people including D1 and D3 took part in a high stakes game of mahjong. PW2 was included in the game. At its conclusion PW2 was told that she had incurred a gambling debt of $200,000. She signed an I.O.U. acknowledging this. She also signed a note acknowledging that she had taken D1's Rolex watch and a note that she owed D3 $500.

14. The demands made of PW2 by D1 and D3 for the repayment of the $200,000 were the subject matter of the 4th charge.

15. Shortly after this a meeting was arranged to discuss how the moneys could be repaid. According to PW2 the applicants made threats of violence if the moneys were not repaid. They implied that her family members might be injured. This threat was the subject matter of the 5th charge.

16. There were other meetings. At one of these PW2 brought along one of her friends PW3 who was one year younger than her. She also had an unfortunate background and had worked as a prostitute. She had signed an I.O.U. relating to the D1's Rolex watch and the unwarranted demand to repay the value of the watch was the subject matter of the 6th charge.

17. One of the proposals which was made for the repayment of the $200,000 was that PW2 should work for D1 and D3 as a prostitute. It was also suggested that PW3 should also work for them so that the debt could more expeditiously be repaid. This was agreed to. This was the subject matter of the 7th charge.

18. Shortly after this PW2 went to the police. A further meeting was set up and it was at this meeting that D1 and D3 were arrested.

19. D1 did not give evidence. He simply called a senior doctor at the Queen Elizabeth Hospital to give evidence concerning his medical condition after an altercation at the police station.

20. D3 did give evidence. She denied the prosecution case. She suggested that PW2 and PW3 had concocted their evidence against them in an attempt to evade repaying a debt of $35,000 she claimed PW2 owed them. She also alleged that the police had assaulted her husband at the police station. She claimed that she was also manhandled.

21. In a lengthy judgment Deputy Judge Li analyses all of the relevant evidence. He was prepared for the most part to accept the prosecution evidence and he referred D3's version of events.

22. He was satisfied that the prosecution had proved their case on charges 3, 4, 5, 6 and 7 at the appropriate level and convicted all of the defendants on the relevant charges.

23. The 1st and 2nd grounds of appeal can conveniently be dealt with together. A complaint is made about the way in which the Deputy Judge expressed himself. He took it upon himself to pass a number of personal remarks concerning the character and demeanour of D3. He then went on to make an observation on PW3 to the effect that according to Chinese traditions he should regard himself as being in a position akin to being in loco parentis to her.

24. Some of these observations as regards D3 were hurtful, unnecessary and not justified on the evidence. Those relating to PW3 were open to misinterpretation concerning the Deputy Judge's impartiality. They were not however, in the context of the reasons for verdict as a whole of such a bizarre nature as to lead us to believe that he was either biased or in any other manner did not weigh the evidence in a judicial manner.

25. Suffice it to say that he has expressed himself in a most unfortunate manner.

26. In the same way when he refers to the necessity of writing a judgment of hundreds of pages to deal with all inconsistencies in the prosecution evidence he is obviously not intending that this statement should be taken literally. What is significant is that the reasons he gives are fairly detailed and he does cover the important parts of the prosecution and defence evidence.

27. It is also clear that although he does make reference to D3's demeanour it was the acceptance of the evidence of PW2 and PW3 which was crucial in determining whether or not the prosecution case was proved.

28. Mr Cahill sought to add an additional ground. This was to the effect that there was insufficient evidence of menaces to support counts 4 and 6. There was evidence that if PW2 did not agree to pay mahjong she would be beaten up. Mr Cahill accepted that in these circumstances there was sufficient evidence of menace to support count 4.

29. So far as count 6 is concerned when PW3 signed the I.O.U. it was clearly on her evidence in the contemplation of the parties that if the $200,000 was not repaid harm may occur to PW2's family. That was in our view a sufficient menace to support the charge.

30. There was however one matter which concerns us. Mr Reading for the Crown conceded that as there was no evidence on 7th count that the girl actually had sexual intercourse. The conviction on this count cannot stand.

31. We consider that a conviction for an attempt to commit the offence must be substituted and the sentence in respect of this substituted charge will be the same.

32. So far as the other charges are concerned we consider that the convictions are not unsafe or unsatisfactory and this application is dismissed subject to the substitution of an attempt to commit the offence being substituted for the substantive offence.