On or about 13 April 2002, the accused, Mr Kwok Ho, travelled to Shenzhen and met K.S who asked him to help her find work in Hong Kong. Mr Kwok Ho made arrangements for K.S. to come to Hong Kong to work and K.S. agreed.
Mr Kwok Ho allegedly transported K.S. to a hotel in Shenzhen to a third party who he knew was going to transport her to Hong Kong. The accused knew K.S. was being brought to Hong Kong for the purposes of prostitution. A third party then transported K.S. and several other girls to Hong Kong. K.S. was then accommodated and began to work as a prostitute at a massage establishment in Mongkok called ‘Chun Mun Lau’. Between April and May 2002, Mr Kwok Ho assisted in the management of these premises, which were kept as a vice establishment. While working there, K.S. claimed she was locked up in a room on the premises and escorted from place to place. It should be noted, however, that K.S.’s evidence was deemed by the presiding judge at first instance to be unreliable. [Reasons for reaching this conclusion were not given].
Chine1st Instance:
The District Court (Hong Kong), 16 April 2003, guilty on two charges, acquitted on one charge.
2nd Instance:
The Court of Appeal of the High Court (Hong Kong), 11 February 2004, appeal against conviction dismissed.
1st Instance:
The defendant pleaded guilty in the District Court (Hong Kong) to the second charge and was acquitted of the third. In respect of the first charge, trafficking in persons, the defendant pleaded not guilty and was convicted to 26 months imprisonment.
2nd Instance:
The defendant brought an appeal against conviction (he previously abandoned an application for leave to appeal sentence) in the Court of Appeal of the High Court (Hong Kong).
As per Stock JA (for the Court):
Issues on appeal:
1) Whether the acts of the applicant were such as to constitute the offence of “taking part in bringing a woman to Hong Kong”; [the actus reus]
2) If so, whether the activities of the applicant in arranging for the female to be brought to Hong Kong were acts falling within the court’s jurisdiction; and
3) Whether the breach or breaches of the Secretary for Security’s Rules for the Questioning of Suspects as admittedly occurred when the applicant was interviewed by the police were such that the judge erred in the existence of his discretion in deciding nonetheless to admit the interview records as evidence.
Law applied:
1) In obiter, it was outlined that the section [s. 129 Crimes Ordinance] is “designed to prohibit trafficking of persons to Hong Kong and is directed at participation in the act of trafficking.” It was held that the applicant did, actively and deliberately, participate in the process of trafficking in persons by way of a joint enterprise [as an agent for a third party who was importing prostitutes into Hong Kong]. The decision turned on the specific facts of the applicant’s participation in the “delivery” leg of the trafficking process, which was held to be “essential to the transportation of the person to the border, and the delivery was close to the transportation both in time and place.”
2) The applicant was party to a crime committed within the jurisdiction of Hong Kong and was therefore to be tried in this jurisdiction.
3) No sufficient grounds to exclude the statements.
Conclusion: Appeal against conviction dismissed.
The Court of Appeal of the High Court (Hong Kong)
2nd Instance: [2004] HKEC 179; 2004 WL 5821 (CA); CACC 178/2003
The evidence of K.S. indicated that there was the recruitment, transfer, transportation and harbouring of an individual through deception for the purposes of sexual exploitation/exploitation for prostitution. However the evidence of K.S. was not admitted on the basis that it was deemed unreliable. To this end, the facts theoretically do not show either deception or sexual exploitation, potentially making it a matter more accurately constituting ‘migrant smuggling’ rather than ‘trafficking in persons’.