Ip Kam Shing Alias Kampon Sempbob Pokaseth v The Queen

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 524 OF 1968

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JUDGMENT

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1. In the court below the appellant was charged with five separate charges of trafficking in females into the Colony for prostitution contrary to section 3(1)(a) of the Protection of Women and Juveniles Ordinance, each charge being concerned with a different female. He was also charged with five separate charges of procuration of females contrary to section 4(1)(b) of the same Ordinance. The charges are concerned with the same five females. He was also charged with the unlawful detention of females contrary to section 8(1)(a) of that Ordinance and to living on the earnings of prostitution contrary to section 17(1)(a) of that Ordinance. This last charge was also concerned with the same females.

2. The appellant was acquitted of all the charges of trafficking in females under section 3(1)(a) and of the offence of unlawful detention. This is an appeal against his conviction of the five charges of procuration and the charge of living on the earnings of prostitution.

3. I will deal with the 5 charges of procuration first. The relevant part of the section under which the appellant was convicted reads thus:-

"Any person who procures or attempts to procure any female to become either within or without the Colony a common prostitute shall be guilty of a misdemeanour."

The appellant is a Thai business man from Bangkok. The case for the prosecution was that he arranged for five Thai girls to accompany him to Hong Kong on various pretexts. He made their travelling arrangements for them and upon arrival in Hong Kong on 7th May 1968 accommodated them in his premises in Nathan Road. At first the appellant took the girls out sightseeing in Hong Kong. They had not been here before and were unable to speak any language except Thai. The appellant then told the girls that they must earn money for him as prostitutes. He himself or someone on his behalf conducted each girl to a boarding house or hotel where she was introduced to a man with whom she had sexual intercourse. Later she was collected by the appellant or someone on his behalf and returned to his premises where the girls were all virtually kept prisoners.

4. No money was paid to the girls and there was some evidence that the appellant made threats and even beat up one of the girls. Occasionally a Mr. Lo would conduct the girls to an hotel on the appellant's behalf. This state of affairs continued until 15th June when one of the girls escaped and found her way to the police.

5. Counsel for the appellant argues that the District Court judge misdirected himself in law as to the meaning of the section under which the charges are brought.

6. At the trial all of the girls gave evidence. In his judgment the District Court judge deals with this exhaustively. He then goes on to say this:-

"The cumulative effect of the discrepancies and peculiarities (to be found in the girls' evidence) to my mind renders incredible the girls' story considered as a tale of innocence betrayed and of forced prostitution and unlawful detention. I found therefore that the Crown's case on the first 6 charges (clearly the major charges and those which required the proof of the Crown's case at its widest amplitude) was not made out against the accused and I acquitted him upon those charges."

The charges referred to are the 5 charges of trafficking and the charge of unlawful detention.

7. The trial judge went on to state that he considered the five girls were "girls of light virtue who were open to the suggestion of pursuing the trade (prostitution) once they had come (to Hong Kong)". He said that it was not necessary for the prosecution to prove that the girls had not previously been of immoral character or known prostitutes. The moral character of the girls was immaterial to the charge.

8. I do not think that this accurately states the law. I think the trial judge was to a certain extent influenced when coming to this conclusion by a suggestion made in the course of the trial that the sub-section under which the charges are laid had been amended. It was hinted that section 4(1)(b) originally contained the words "not being a common prostitute" as an ingredient of the offence, words which were later excised by an amending Ordinance. This is not the case. Such an amendment was made to the original paragraph (1)(a) of the section but not to paragraph 1(b), the paragraph with which we are here concerned.

9. Be that as it may the words of the section are "to procure any female to become a common prostitute". If such a female is already such a...