R. v. YEUNG KWOK FAI

IN THE COURT OF APPEAL

1996, No.582

(Criminal)

_______________

_______________

_______________

J U D G M E N T

_______________

Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant in this matter originally faced a number of charges but was, after trial before Judge Chung in the District Court, found guilty of two only of those charges: managing a vice establishment and living on the earnings of prostitution. He was sentenced to 15 months on the first charge, 12 months on the second and the sentences were ordered to be concurrent.

2. The charges were particularised as follows:

that he, between a day unknown in June 1995 and 28th July 1995, at Flat B, 3/F Ka Nam House, No.13 Nanking Street, managed the said premises which were kept as a vice establishment;

that during the same period and at the same place he had knowingly lived wholly or in part on the earnings of the prostitution of female persons.

He now seeks leave to appeal against those convictions.

3. The facts as set out by the trial judge and as detailed in the evidence before him came from a number of civilian witness and from police officers who had been keeping the premises under surveillance.

4. The first witness was a Miss Yeung Shan-shan who said that her girlfriend Lo Yuk-shan had introduced her to a male known as Lai Fat and that Lai Fat had introduced her to a person called Yeung Kwok-fai, also known as Siu Yiu. She identified the applicant as Siu Yiu. She said that she and other girls worked at the premises in question from the beginning of July to 28th July and that on that day at about 9 p.m. she was in the premises when Lai Fat brought three male customers to the premises who included the applicant. Shortly thereafter the police raided the premises. She said that he had all along been a customer.

5. The second witness, a male Tam Kam-shing, said that on 16th July he went to Nanking Street and that a male, whose name was Siu Yiu, came down and met him in the street and took him up to the premises to choose a girl. He said that Siu Yiu also gave him a name card and told him to contact him again. He had sex with one of the girls on that evening and he later paid $400 to Siu Yiu. He said that he went to the premises again on 28th July with a friend Wong Wai-keung and that when they were somewhere near the building they telephoned and spoke to Siu Yiu who came down and took them to the unit. He said that Siu Yiu had a key and opened the door of the unit with that key. He took one of the girls in the unit and of the arrival of the police shortly thereafter. He did not identify the applicant as Siu Yiu. His friend Wong gave much the same evidence but he also did not identify the applicant as Siu Yiu. He did say that the male who had led them to the premises was arrested by the police.

6. Police officers who were keeping the premises under surveillance said that at about 9:32 the applicant approached males downstairs, talked briefly to them and then took them into Ka Nam House.

7. The applicant did not give evidence. The judge said that he found Tam and Wong to be truthful and reliable witnesses. He also accepted that the police officers were truthful and reliable.

8. The applicant today raises a number of matters of fact which he says were wrongly resolved against him and which he submits make the convictions unsafe and unsatisfactory. He says firstly that Miss Yeung Shan-shan gave no evidence implicating him in the offence and, indeed, gave evidence which exonerated him as she said that he was only a customer. He says further that the second and third witnesses did not identify him and that it is unsatisfactory that none of the police witnesses, who apparently had the opportunity to see him without any upper garment, made any mention that he had tattoos on his body which, it was common ground, he does have.

9. His complaint with regard to the first witness was dealt by the trial judge as follows:

"As regards Yeung's testimony, it is true that the prosecution has not impeached and, not having turned her hostile, cannot impeach its own witness. However, it does not mean that I must accept her testimony. I am to give such weight to her testimony as I find appropriate. I bear in mind that I should be very careful before I should give less than full weight to her testimony because:-

(a) she has not been treated as a hostile witness;

(b) the burden of proof is on the prosecution.

Having considered the whole evidence, I find that I should not accept her testimony that:-

(a) D2 was only a customer; and

(b) D2 was not in any way connected with the vice activities in the said premises.

I find that she was trying to protect D2 when she testified to this effect probably because D2 was a friend of Lai Fat. From her testimony, it is clear that Lo and Lai Fat, two persons connected with the vice activities in the said premises, were at least Yeung's acquaintances. However, I accept her testimony that she and other girls worked as prostitutes at the said premises from the beginning of July to 28 July, 1995.

10. The judge was entitled to take the view which he did of the evidence of witness. He stated the matter correctly when he said that the fact that she had not been impeached and turned hostile did not mean that he was bound to accept her testimony. He clearly gave careful consideration to that testimony and, only after having done so, did he indicate that he was not prepared to accept it insofar as it exonerated the applicant. He resolved this matter in a proper way and this is nothing which would allow us to interfere with his decision thereon.

11. The failure of the second and third prosecution witnesses to identify the applicant was dealt with by the judge as follows:

"As stated earlier, I am satisfied that the police witnesses' testimony relating to what they saw D2 did in the vicinity of the building at 13 Nanking Street to be credible and reliable evidence. Taking into account the testimony of the police witnesses, Tam and Wong, which I accepted, the only irresistible inference is that the male referred to by Tam (as Siu Yiu') and Wong was D2. The identification by Yeung that the Siu Yiu' she referred to was D2 further supports this finding. I find that it is fanciful to think that this Siu Yiu' was not the same Siu Yiu' referred to by Tam."

This is an impeccable finding which cannot be impeached.

12. We turn then finally to the question of the tattoos. Should the judge have rejected, or at least had doubts as to the reliability of the police evidence given that the officers made no mention of tattoos? The judge, in this regard, said:

"there is undisputable physical evidence that D2's upper body has a lot of tattoos. Although the police witnesses, Tam and Wong all testified that the male they saw did not wear any upper garment, none of them testified that he had any tattoos on his upper body."

This matter was clearly in the mind of the judge when he was considering the evidence of the police officers but at the end of the day he had no doubt that they were truthful and reliable. He was entitled to come to that finding. Nothing has been raised which in any way casts doubt upon the propriety of the conviction, the application must, therefore, be refused.