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R. v Ha Hau Kwan Fong

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date23 May 1996
Year1996
Judgement NumberHCMA444/1996
Subject MatterMagistracy Appeal
CourtHigh Court (Hong Kong)
HCMA000444/1996 R. v. HA HAU KWAN FONG

HCMA000444/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.444 of 1996

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BETWEEN
THE QUEEN Respondent
AND
HA HAU KWAN FONG Appellant

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Coram : Hon Leong, J. in Court

Date of hearing : 23 May 1996

Date of judgment : 23 May 1996

Date of reasons for judgment : 24 May 1996

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REASONS FOR JUDGMENT

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1. The Appellant was convicted after a trial of three offences of knowingly living wholly or in part on the earnings of prostitution, contrary to s.137(1) of the Crimes Ordinance. She now appealed against convictions. After hearing submissions by Counsel for the Appellant and Counsel for the Crown, the appeal was dismissed with reasons to be given later. I now give my reasons.

2. There are two grounds of appeal. The first complaint is that the magistrate failed to make a finding that the $1,500 was earnings of prostitution and the money so paid to the Appellant could not in law amount to earnings of prostitution. The second complaint is that the magistrate indicated his disbelief of a defence witness during her testimony. The convictions are unsafe and unsatisfactory.

3. On 10th October 1995, as part of a police undercover operation, the Appellant who worked in a sauna was telephoned by one of five police officers involved in the exercise to go to the JJ Disco in Wanchai. When she arrived there, she spoke to the officers and later she agreed to arrange three women to go to the disco who would later in return for money provide service to three of the officers, such service included sexual intercourse. The agreed price was $2,000 for each woman and in addition, the Appellant would be paid a fee for the arrangement. The Appellant left the disco for a short time and soon after, three women duly arrived and they went away with three officers to a hotel where they performed services in the nature of prostitution. After they left, the Appellant told the remaining officers she could provide more girls for them, if not on that occasion, the "next time". The Appellant then said "I usually charged $500 per girl when I introduce them to people". She later confirmed she wanted $1,500 for the arrangement she had made and she was given $1,500.

4. The Appellant's case was she was one of the women who were prepared to prostitute themselves and she did not make the arrangement nor did she receive reward for the women to come. She was there to provide sex but the officer who was with her made it clear that no sex was wanted. Following that, she insisted to be paid for the time she was required to leave her work in the sauna. After some struggling, she accepted $1,500.

5. The magistrate found the Appellant had come to the disco and had agreed with the officers that for arranging girls to come to provide services including sexual intercourse to the officers, they would pay her tea money in addition to the payments to the girls. These girls duly came and subsequently performed sex services to the officers.

6. The magistrate found the Appellant was paid $1,500 for providing the prostitutes to the officers. He found that this was a significant amount. In his written verdict, he dealt with what would be sufficient to found a charge of this nature and he said :

"What needs to be shown in all cases is that the defendant lived, at least in part, on the earnings of another or others of prostitution. This is not the same as saying there must be a finding that it is the defendant's sole means of livelihood. In short, there must be a finding in support of the defendant's livelihood in a material way. That somebody did more than once should, therefore, be material rather than inconsequential. I do not agree with Mr Cosgrove that it should be substantial. As importantly if not more so, there must be evidence that the incident proved was not a one off incident. It must be proved that it was the practice of the defendant to live off the prostitution of others."

7. The magistrate in conclusion said :

"It is clear from these findings that the defendant was in the business of providing prostitutes for customers, that it was not a one off proposition. The inference is escapable. The defendant is found guilty of each of the offences charged ..."

8. Immediately following the Appellant's convictions by the magistrate there was a review. There was some exchange by the magistrate with Counsel for the Appellant at the trial who submitted that there must be clear proof that in some way the Appellant was benefitting substantially from earnings of prostitution. The magistrate clarified what he said in his verdict in relation to the amount of $1,500 in the following terms :

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