Public Prosecutor v Quek Chin Choon

• Jurisdiction: Singapore
• Judge: See Kee Oon JC
• Judgment Date: 22 December 2014
• Neutral Citation: [2014] SGHC 268
• Plaintiff Counsel: Sanjna Rai and Nicholas Wuan Kin Lek (Attorney-General's Chambers)
• Docket Number: Magistrate’s Appeal No 50 of 2014
• Date: 22 December 2014
• Hearing Date: 17 October 2014,19 December 2014
• Subject Matter: Statutory Offences,Criminal Law,Women's Charter
• Published date: 29 December 2014
• Citation: [2014] SGHC 268
• Defendant Counsel: Peter Ong Lip Cheng (Templars Law LLC)
• Court: High Court (Singapore)
• Year: 2014

See Kee Oon JC:

These are cross-appeals arising out of the accused’s conviction following trial in the District Court on five charges of having knowingly lived on the earnings of prostitution, an offence under s 146(1) of the Women’s Charter (Cap 353, 2009 Rev Ed), which reads as follows:

Persons living on or trading in prostitution 146.—(1) Any person who knowingly lives wholly or in part on the earnings of the prostitution of another person shall be guilty of an offence and shall be liable on conviction to imprisonment for a term not exceeding 5 years and shall also be liable to a fine not exceeding $10,000.

He was fined $8,000 on each charge, making a total fine of $40,000. No term of imprisonment was imposed. The District Judge’s grounds of decision have been published as Public Prosecutor v Quek Chin Choon [2014] SGDC 211 (“the GD”). The accused has appealed against his conviction and the prosecution has appealed against the sentence imposed.

In brief, the facts are that the accused was a freelance photographer who took photographs of various women working as prostitutes for the purpose of advertising their services on an adult website. He did so knowing what their occupation was and he received monetary payment from them in return. The essence of the parties’ cases may be simply stated in terms of the characterisation they seek to place on the conduct of the accused.

The accused has depicted himself as a person providing bona fide photography services to the world who was guilty of nothing more than having had prostitutes as customers. These services would ordinarily be perfectly legitimate and legal, he argues, and he should not be saddled with a criminal conviction just because he happened to provide them to women involved in this particular trade. By contrast the prosecution has cast him as one who was effectively a “consultant” to the prostitutes. Thus, far from being a relatively passive bystander, the accused had played an integral part in promoting prostitution. The prosecution contends that the District Judge failed to appreciate the extent of the accused’s role and culpability in the matter and that the sentence imposed on him should therefore be increased.

Facts

The five charges against the accused pertain to his dealings with five female Chinese nationals all of whom worked as prostitutes in Singapore in that they provided sexual services in exchange for monetary payment. Some of these women came to Singapore intending from the outset to work as prostitutes; others formed that intention subsequent to their arrival here. None of them had yet commenced work as prostitutes when they first met the accused. All of the women recounted that he was introduced to them as someone who could help them to attract customers, ie, persons to whom they would provide sexual services. The understanding was that the accused would take photographs of the women and put them on the Internet to advertise their services.

That was what the accused did. He took photographs of the five women in various suggestive poses clad only in their underwear or at any rate with barely any clothes on. He edited these photographs in order to enhance the sexual attractiveness of the women. He created a website and put up profiles of the women on it. The content of these profiles included the photographs he had taken of them, descriptions of certain of their physical characteristics and vital statistics, a catalogue graphically describing the sexual services they were willing to provide, and a telephone number at which they could be contacted.

There is no doubt that the website was and was meant to be a mode of advertising the sexual services of the women. The accused gave each woman a nickname by which she was known on the website so that potential customers could remember them with greater ease. He also posted reviews of their customers’ feedback and provided links to his website on the forum of another website known as “Sammyboy”; it is not disputed that sexual services are commonly advertised and sought on that forum. All five women testified that they were contacted by customers within days of the appearance of their profiles on the accused’s website and that they proceeded to provide sexual services to those customers.

The accused charged the women a fee for his photographic and advertising services. The quantum of that fee was variable, as was the question of whether it was a one-time payment or a recurring sum. One paid $300, another paid $1,500 being $500 a month for three months, and the others paid $500 – at least one of these women was to have paid $500 a month but was arrested by the police before the time came to make further payments.

Common to all the women is that they did not remunerate the accused immediately after he had taken their photographs. This is because they lacked the financial means to do so at that time. The accused agreed that they could pay him later; as the accused put it in submissions, in effect he extended credit to them. The women went on to earn money through the provision of sexual services to customers. With this income, all of them managed within days to discharge the debts that they owed to the accused.

The appeal against conviction The elements of the offence

In Public Prosecutor v Liew Kim Choo [1997] 2 SLR(R) 716 (“Liew Kim Choo”), Yong Pung How CJ set out (at [32]) four “major elements” that the prosecution had to prove beyond reasonable doubt in order to make out the offence under s 146(1) of the Women’s Charter. These elements were presumably distilled from the words of the statute and they are that: Prostitution took place; Earnings were made from that prostitution; The whole or part of those earnings or the benefit of those earnings were received by the accused; and The accused received those earnings or their benefit with the knowledge that they were earned through prostitution.

I have no doubt that these four elements, thus expressed, were all present in the instant case. In my view, that determination merely raises the further question of whether these elements are necessary but not sufficient conditions of criminal liability under s 146(1) of the Women’s Charter, but before I turn to address that question, I shall consider each of the elements in turn.

First element: that prostitution took place

As to the first element, following the guidance of Yong CJ in Liew Kim Choo at [36], the prosecution had to prove that the five women had indiscriminately offered their bodies for sexual activity with customers in exchange for money within or around the time frame stipulated in the respective charges, and that sexual intercourse had indeed taken place between the women and their customers pursuant to those offers. I should mention that, in my understanding, the adverb “indiscriminately” which Yong CJ employed is not meant to suggest that prostitution occurs only when a woman offers her body to all the world and engages in sexual activity with any and every person who pays the price asked for. Put another way, I do not think that the court is precluded from finding that prostitution took place just because the woman in question limited her solicitations to a class of persons only or just because she might on some previous occasion have declined for whatever reason to provide sexual services to particular individuals even though those individuals were prepared to pay.

Mr Peter Ong, counsel for the accused, argued that this element is not made out because the prosecution had not adduced sufficient evidence of identifiable acts of prostitution. The prosecution, he said, did not adduce evidence of the dates and times of these alleged acts of prostitution and the identities of the parties with whom the acts had allegedly taken place. When the five women and the accused were arrested by the police at two different places no acts of prostitution were taking place at either of those locations at the time; also, the prosecution had not called evidence from any of the alleged customers of any of the women.

I am not persuaded by Mr Ong’s contentions. It is true that when the five women testified that they had provided sexual services in return for monetary payment they were unable to identify the precise dates and times at which these things took place. But that is not fatal to the prosecution’s case because the degree of chronological exactitude required is not great; it suffices to show that the acts of prostitution took place within a range of dates or times. As to Mr Ong’s other points, I do not think that the prosecution was obliged to call the customers of the women as witnesses, still less do I think that the prosecution’s case is undermined in the slightest by the fact that the women were not arrested while engaging in acts of prostitution.

The evidence adduced by the prosecution consists in the main of the testimonies of the women unequivocally asserting that prostitution had taken place. There is the uncontroverted fact that through the accused’s photographs and website content, the women had all broadcast their willingness to perform sexual services for money. There is further the uncontroverted fact that, although the women lacked the means to pay the accused for his photographic and advertising services at the time these were rendered, they were able to foot the bill within a matter of days. Now it is of course possible that the women did not in fact engage in sexual activity with any customer despite their publicised readiness to do so; that they acquired the wherewithal to pay the accused within that short space of time other than by performing sexual services for money; and that they gave false testimony in court. But these are all possibilities so implausible and remote in the circumstances that they generate no reasonable doubt as to whether prostitution involving all five women had taken place.

Second...