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Re David Perry, Qc

Judgment Cited authorities 8 Cited in 1 Precedent Map Related
Vincent
Judgment Date10 July 2020
Neutral Citation[2020] HKCFI 1521
Year2020
Judgement NumberHCMP751/2019
Subject MatterMiscellaneous Proceedings
CourtCourt of First Instance (Hong Kong)
HCMP751/2019 RE DAVID PERRY, QC

HCMP 751/2019

[2020] HKCFI 1521

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 751 OF 2019

________________________

In the Matter of the application by David Perry, QC, to be approved, admitted and enrolled as a barrister of the High Court of the Hong Kong Special Administrative Region for the purpose of a particular case
and
In the Matter of section 27 of the Legal Practitioners Ordinance, Cap 159

________________________

Before: Hon Poon CJHC in Court
Date of Hearing: 31 May 2019
Dates of Supplemental Written Submissions: 5 May, 1, 2 and 17 June 2020
Date of Judgment: 10 July 2020

_________________

J U D G M E N T

_________________

1. This is an application for ad hoc admission of Mr David Perry QC for the purpose of appearing for the two appellants in CACC 368/2016, an appeal from DCCC 199/2016, to be heard by the Court of Appeal on 8 and 9 September 2020. It is opposed by both the Bar Association and the Secretary for Justice.

2. The application first came before me on 31 May 2019. Ms Maggie Wong SC,[1] for the applicant, sought to rely on a proposed constitutional challenge to section 137(1) of the Crimes Ordinance, Cap 200.[2] It had an obvious significant impact on the application but was not raised in the Grounds of Appeal. After some discussions, Ms Wong applied for an adjournment for leave to be obtained from the Court of Appeal to raise the point and to amend the Grounds of Appeal consequentially. The application for adjournment was not opposed subject to costs. I then adjourned the hearing of the application to a date to be fixed with costs reserved.

3. The appellants have since obtained leave from the Court of Appeal and amended the Grounds of Appeal. The applicant applied to restore the hearing of the application when the Bar Association and the Secretary for Justice maintained their opposition. Pursuant to my directions, the parties have lodged further written submissions. With the parties’ consent, the application is to be disposed of on paper without further oral hearing.

4. I now hand down my judgment.

DCCC 199/2016

5. The 1st appellant was charged with the offence of living on earnings of prostitution of others (“LEPO”), contrary to section 137(1) of the Crimes Ordinance. The 2nd appellant was charged with the offence of aiding, abetting, counselling and procuring the 1st appellant’s commission of the offence, contrary to the same provision and section 89 of the Criminal Procedure Ordinance, Cap 221. They both denied the charges and stood trial before HHJ Alex Lee (as he then was).[3]

6. The entire prosecution case was agreed by way of Admitted Facts under section 65C of the Criminal Procedure Ordinance. It may be briefly stated as follows.

7. During routine cyber surveillance of the Internet in July 2014, a website called www.hkbigman.net (“hkbigman”) with an online members’ forum appeared to be promoting “compensated dating”. The online forum had various sub-categories, one of which was an “Adult Forum”. Female memberships were free of charge. There were three levels of female membership based on age, appearance and exclusivity. There were different classes for male membership ranging from Ordinary members to VIP to Prestige VIP members. VIP members were further divided into New VIP members and Accredited VIP members. Ordinary membership was free of charge. VIP membership cost HK$550 for the first year with reduced annual fees thereafter. Prestige VIP membership could be obtained with a one-off payment of HK$8,000. The different classes members gained different levels of access to the details of female members. Prestige VIP members gained full access to all female members’ contact and personal details, including photographs and sexual preferences.

8. The design of the Adult Forum was such that it was for male members to view information about female members, make requests for dating and wait for a reply; but not the other way round. While male members were not required to provide their personal information, female members were required to state their ages, heights, measurements and contact details together with an “accreditation” photograph and a “reference” photograph. Photographs showing their figures along with descriptions, which were explicitly sexual, were posted. Female members were not required to provide any information about their educational backgrounds, work, hobbies or interest.

9. During police’s covert operation, an undercover woman police officer (PW1) registered as a female member. She was contacted by the 1st appellant to discuss her accreditation. He then posted the message “Newbie needs your help to get accredited” in the VIP Secret Information Group of the Adult Forum and sought assistance from others to write a report on PW1. Subsequently, a male member met up with PW1 in Mongkok. They talked about sexual practices. He explained to PW1 that accreditation meant that VIP members and one Diamond VIP member would assess her performance and then post reports on hkbigman. PW1 would then become an “accredited” female member. He further mentioned that the prevailing fee was HK$1,500 per “Q”. Having told PW1 about his own sexual preferences and after suggesting that they retire to a nearby hotel, PW1 made an excuse and left.

10. An undercover male police officer registered as a member and having paid the requisite fees, gained access to the full information and details of female members in the “Dating Zone”, which included the sexual practices on offer, the prices based on the activity and time involved and travel expenses. Another undercover male police deposited HK$550 into the 1st appellant’s bank account and became a VIP member. He subsequently received a posting from the 1st appellant to help “accredit” PW1.

11. The 1st appellant was the registered administrator of hkbigman since August 2010. He derived his income from the website by way of male membership fees and gold coins. At the time of arrest, his bank accounts showed a total balance of some HK$1.8 million.

12. The 2nd appellant was the deputy moderator of the Dating-with-Girls Report Group of hkbigman. He admitted in a video-recorded interview that he joined hkbigman in 2013 and became an assistant webmaser in June 2014. He knew that the Adult Forum provided a platform for promoting and facilitating sexual services for payment. However, he claimed that he himself received no reward, working only on a voluntary basis.

13. The appellants did not give evidence or call any witness.[4] The defence case was that the income which the 1st appellant derived from hkbigman was not capable of being “earnings of prostitution” and accordingly did not come within the offence of LEPO. Thus as a matter of law, the 1st appellant’s activities were not illegal and the 2nd appellant could not be guilty of assisting the former in what he did.

14. After reviewing the English authorities, the trial judge rejected the contention that the 1st appellant’s income from hkbigman did not in law amount to the “earnings of prostitution”. He held that such income was referable to and so closely connected with prostitution or intended prostitution of its female members that it amounted to “earnings of prostitution” of others. He also noted that section 137(2) of the Crimes Ordinance provided, inter alia, that a person who exercises control, direction or influence over another person’s movements in a way which shows that he or she is aiding, abetting or compelling that other person’s prostitution with others, shall be presumed to be knowingly living on the earnings of prostitution, unless he or she proves the contrary. “Direction, influence and control” under section 137(2) was only a piece of evidence, rather than an element of offence, the absence of which was not necessarily fatal to the prosecution case.

Grounds of appeal

15. The appellants will raise the following grounds of appeal in the coming appeal:

(1) The income of the 1st appellant was not capable in law of amounting to the “earnings of prostitution of others”.

(2) The income received by the 1st appellant was not referable to and closely connected with prostitution or intended prostitution, so as to amount to the “earnings of prostitution of others”.

(3) Although the exercise of control, direction or influence over another person’s movements was not an element of the offence of LEPO, the absence of such control, direction or influence was fatal to both convictions.

(4) Since no offence of LEPO could...

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1 cases
  • Re David Perry, Qc
    • Hong Kong
    • Court of First Instance (Hong Kong)
    • 31 July 2020
    ...on Costs: 31 July 2020 _______________________ DECISION ON COSTS _______________________ 1. By a judgment handed down on 10 July 2020 ([2020] HKCFI 1521), I allowed the applicant’s application for ad hoc admission in CACC 368/2016. The usual practice is to make no order as to costs of the 2......

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