Hon Cheung JA (giving the judgment of the Court):
上訴法庭法官張澤祐頒發上訴法庭判案書：

Charges
控罪

The applicant was charged with one count of procuring another person to become a prostitute, contrary to section 131(1)(a) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong.  At the same time, she was faced with an alternative charge, namely trafficking in persons from Hong Kong, contrary to section 129(1) of the Crimes Ordinance.
申請人被控一項「導致另一人賣淫」罪，違反《刑事罪行條例》(香港法例第 200 章)第 131(1)(a) 條。申請人亦同時被控一項交替罪名，即「販運他人離開香港」罪，違反《刑事罪行條例》第 129(1) 條。

The case was heard by Deputy District Judge Anthony Yuen.  The applicant was found guilty of procuring another person to become a prostitute and was sentenced to 18 months imprisonment.  She now seeks leave to appeal against her conviction.  She had also applied for leave to appeal against her sentence, but she abandoned that application on 8 August 2009 and the Court dismissed that application on the same day.
案件經區域法院暫委法官阮偉明審理後，申請人被裁定「導致另一人賣淫」罪罪名成立及被判監十八個月。申請人現就定罪提出上訴許可申請。她本來還就刑期提出上訴許可申請，但於 2009 年 8 月 8 日放棄該申請，法庭亦於同日撤銷該申請。

Facts
案情

The facts were that in March 2007, the following advertisement appeared  in a Hong Kong newspaper for a number of days:
案情顯示，2007 年的 3 月份一份香港報章多日刊登以下的一則廣告：

‘Quick money to be earned overseas, plenty of countries for you to choose, can earn $100,000 every month, safe and reliable, food and accommodation provided, no commission required, please call 9239 9235.’
「海外快錢多國選擇月入 10 萬安全可靠包食包住免佣請電 92399235」

The second prosecution witness (PW2) was a police constable.  On 10 May 2007, she was instructed to carry out investigation in respect of this advertisement.  On 16 May 2007, PW2 posed as an applicant for the job and called the number in the advertisement.  A woman, who called herself ‘Maggie’, answered the call.  Judge Yuen stated the content of this telephone conversation in his Reasons for Verdict:
控方第二證人（第二證人）是一名警員。她於 2007 年 5 月 10 日被上司指派就該則廣告作出調查。2007 年 5 月 16 日，第二證人假份應徵者致電廣告上的電話號碼。一名自稱‘Maggie’的女子接聽電話。阮法官在判決書內記載了有關電話內容：

‘The woman said that the job was a job to work in a massage parlour in Australia, and she asked PW2 whether she had worked in a massage parlour before.  PW2 answered that she had not and said that she did not know how to massage, but the woman said, ‘You don’t need to know.  All you need to do is to knead him a few times and then the customer will go to bed with you’.  She also asked PW2 about her age and her figure.’
「該名女子指有關工作是在澳洲一個骨場工作，及問第二證人曾否有在骨場工作過，第二證人答沒有及說不懂揼骨，該名女子說『唔使識嘅，妳係咁易撚幾下，啲客就同妳上床喇』，又問第二證人的年齡及身材」

They also arranged to meet in a restaurant on the same day.  The applicant went there as arranged.  Judge Yuen stated in this Reasons for Verdict their conversation during that meeting:
雙方亦約定於同日在一間餐廳會面。申請人依約赴會。阮法官在判案書內記載了雙方當時會面的對話內容：

‘… PW2 reiterated that she did not know how to massage.  The defendant said that she did not need to know how to massage because the customers just wanted to do it with her.  PW2 asked her whether the customers would do SM, and whether they would refuse to put on a condom.  She said that she did not want to serve customers from Hong Kong.  The defendant said that most of the customers were foreigners and people from China.  They did not play those games and they would do it one to one in the normal way.
「……第二證人重申她不懂揼骨，而被告則說不需懂得如何揼骨，因客人只是想和她做，第二證人問客人會不會玩 SM，又或者會不會不戴套，又表示不想接待香港客，被告說那些客人大都是中國人和外國人，他們不玩那些遊戲，都是一對一，正常地做。

As far as pay is concerned, the defendant said that for each customer, 80 Australian dollars could be earned for half an hour and 100 Australian dollars for one hour.  The working hours were from 12 noon to 2 to 3 o’clock in the small hours.  If PW2 was willing to do this job, she had to pay 2,000 Australian dollars in advance as introduction fee, but this 2,000 dollars could be deducted subsequently from her pay.  PW2 asked her what she should do if she really wanted to go to Australia to work.  The defendant said that if PW2 really wanted to go there to work, she should inform her.  Then she would liaise with a travel agency, which would contact PW2 and arrange for her to bring money and travel documents to the travel agency for applying for visa and buying air ticket.  When it was done, PW2 would be informed to collect the air ticket.  The time required would be about 2 weeks.  After she got the air ticket, the defendant would be informed.  Then the defendant would inform the boss and later someone would pick her up at the airport in Australia.
至於薪酬方面，被告說每一個客人半小時可得 80 元澳幣，一小時可得 100 元澳幣，工作時間由中午 12 時至凌晨 2 時或 3 時，若第二證人有意思做的話，她要先繳交 2,000 元澳幣作介紹費，但這 2,000 元可在日後的薪酬中扣除。第二證人問若她真的想去澳洲工作，應該點做。被告說，若第二證人真的想去做的話，便通知她，她便會和旅遊社聯絡，旅遊社方面會通知第二證人，安排她帶錢及旅遊證件到旅遊社辦理簽證及買機票等，成功後便會通知第二證人拿取機票，大約需時兩個星期，拿到機票後便通知被告，被告便會通知老細，之後會有人在澳洲接機。

The defendant told PW2 that if she was a holder of HKSAR passport, she could stay in Australia for 3 weeks.  If she wanted to stay longer, she could leave the territory for a short while at the expiration of the stay period and then go there again.  In this way she could stay for 3 months more.  If 6 months were still not enough, the boss could arrange for a student visa for PW2, then she could stay there for 2 years.
被告告訴第二證人若她持有的是特區護照，她可在澳洲停留三個月，若她想停留更長時間，可於期滿時稍為離境，然後再入境，便可再停留多三個月，若六個月還不足夠的話，老細可替第二證人安排學生簽證，那麼，第二證人便可停留兩年之久。

PW2 said that she wanted to think over it.  Then the meeting ended.  The whole meeting lasted for about 40 minutes.’
第二證人表示要考慮一下，之後會面便結束，整個會面為時大約四十分鐘。」

On 6 June 2007, PW2 telephoned the applicant again and told her that she decided to go to Australia to work, but at that time the applicant said that she was very busy and that she would contact PW2 later.
2007 年 6 月 6 日，第二證人再致電申請人，訛稱她決定往澳洲工作，但申請人當時表示她很忙，稍後會聯絡第二證人。

Several days later, PW2 and another police constable went to the applicant’s home and arrested her.
數日後，第二證人與另外一名警員到申請人的住所把她拘捕。

At the trial, the applicant elected not to give evidence and not to call any witness.
申請人在審訊時選擇不作供及不傳召證人。

Findings made by Judge Yuen
阮法官的裁決

One of the issues which Judge Yuen needed to consider at the trial was whether, as a result of the contents of the conversations between the applicant and PW2, the applicant believed or might have believed that PW2 herself was already a prostitute.  If she had such belief, she could not possibly commit the offence, because she could not procure a person who is already a prostitute to become a prostitute.  Judge Yuen found that there was no evidence in this case which showed that the applicant had such belief at the material time.  He did not accept that there was anything said in the conversations between the applicant and PW2 as a result of which the applicant believed or might have believed that PW2 was a prostitute.  Judge Yuen said that PW2 had never told the applicant what her occupation was, nor had she expressly or impliedly indicated that she was a prostitute.  The clearest response she made was only that she intimated that she was interested in the job introduced by the applicant.
阮法官在原審時所需要考慮的其中一項爭議點是申請人與第二證人的對話內容會否令申請人相信或有可能相信第二證人本身是一名娼妓，若她有這個想法的話，她便不可能干犯有關的罪行，因為她是不能致使一名本來是娼妓的人當娼。阮法官認為案件沒有任何證據顯示申請人當時存有這個想法，他亦不認為申請人與第二證人的會面對話存有會導致申請人相信或可能相信第二證人是一名娼妓的言詞。阮法官說第二證人從來沒有向申請人透露過她的職業，亦沒有明示或暗示過她是妓女，她最明顯的回應都只不過是對申請人所介紹的工作表示有興趣。

Grounds of appeal
上訴理據

The ground of appeal put forward by the applicant is that Judge Yuen erred in refusing to accept that the applicant believed or might have believed that PW2 was a prostitute or was a woman who wanted to be a prostitute of her own free will, because the evidence as a whole supported the applicant’s holding this impression of PW2, and this is a reasonable and inescapable inference.  Furthermore, Judge Yuen failed to properly consider that the burden of proof was on the prosecution, and that they were obliged to prove that the applicant had the intention to procure a ‘good and decent woman’ to become a prostitute.
申請人所提出的上訴理據是阮法官拒絕接納申請人是相信或有可能相信第二證人是一名娼妓或自願當娼的女子的裁決是錯誤的；因為整體証供都支持申請人對第二證人產生這個印象，這是出於合理或不能排除的推斷。另外，阮法官沒有恰當地考慮舉証責任是在於控方，它須証明申請人有促致一名「良家婦女」當娼的意圖。

Respondent’s stance
答辯人的立場

Miss Yam, Senior Public Prosecutor, for the respondent, submits that the applicant did not give evidence at the trial and that there was no evidence which demonstrates that because PW2 did not show any surprise or unwillingness when she heard the applicant’s explanation and because she arranged with her to meet her, the applicant believed that PW2 was already a prostitute. Miss Yam does not think that PW2 would deliberately make the applicant believe that she was familiar with the operation of immoral transactions.  Miss Yam submits that PW2 did not need to do so and if she had really done so, the applicant would not have to tell her further that ‘she did not need to know how to massage because the customers just wanted to do it with her’, and that ‘most of the customers were foreigners and people from China.  They did not play those games and they would do it one to one in the normal way’.
代表答辯人的高級檢控官任可表示，申請人在審訊時沒有作供，案件亦沒有任何證據顯示申請人是由於第二證人對她所作出的解釋沒有表示驚訝和抗拒及與她相約會面，因而認為第二證人本身是一名娼妓。任律師不認為第二證人是刻意令申請人相信她熟悉不道德交易的運作。任律師認為第二證人是沒有必要這樣做的，而且，如果她真的有這樣做，申請人就無須再向她加以解釋說：「她不需要懂得如何揼骨，因客人只想和她做」及「那些客人大多都是中國人和外國人，他們不玩那些遊戲，都是一對一正常地做」等。

Legal principle
法律原則

The legal principle applicable to the offence is that if a person is already a prostitute, she cannot be procured to become one.  She is willing to provide sexual services because she is a prostitute herself, not because she has been procured by someone to become a prostitute to do so.  Therefore, if the defendant believed or might have believed the person in question was a prostitute, he could not procure that person to become a prostitute; the reason is that he did not have the intention to procure a person who was not a prostitute to become a prostitute.  (see: Hong Kong Archbold 2009, paragraph 21-205, and R v Brown (RA) 80 Cr App R 36).
有關控罪的法律原則是，若果一名人士本身是娼妓，她是不會被另一人導致她成為娼妓的。她願意提供性服務的原因是她本身是一名娼妓，而不是因為被另一人導致她成為娼妓而這樣做，因此若果被告人相信或可能相信這名人士是娼妓，他是不可能導致這名人士去賣淫的，理由是他沒有導致一名不是娼妓的人士去賣淫的意圖(見：Hong Kong Archbold, 2009 年版第 21―2005 段，另見：R v. Brown (RA) 80 Cr App R 36)。

The opinion of this Court
本庭意見

The question whether the applicant believed or might have believed that PW2 was a prostitute must be determined from the evidence as a whole.  The applicant could have elected to give evidence to explain what she understood to be the case.  But even if she elected to exercise her right of silence and did not give evidence, the prosecution was still required to prove that at the material time the applicant did not believe or it was not possible for the applicant to believe that PW2 was already a prostitute.  Conversely, even if the applicant elected to give evidence and claimed that she believed or might have believed that PW2 was a prostitute, but if the evidence as a whole did not support her defence, the Court was not obliged to accept her evidence.
申請人是否相信或可能相信第二證人是一名娼妓是需要從整體案情去推斷的。申請人可以選擇作供去披露她的理解，但就算她選擇使用緘默權不作供，控方亦需要證明申請人當時是不相信或者是不可能相信第二證人本身是一名娼妓。反過來說，就算申請人選擇作供，聲稱她相信或者可能相信第二證人是一名娼妓，若果整體案情不支持有關的辯白，法庭也不一定需要接納她的證供。

According to the circumstances of this case: First, even if the content of the advertisement contained some implications of immoral transactions, this does not mean that an applicant for the job must be a prostitute.  Furthermore, this Court does not consider that the applicant would inevitably believe or might have believed that whoever responded to the advertisement and applied for the job must be a prostitute.  Looking at the content of the first telephone conversation between PW2 and the applicant in isolation, we do not consider that as a result of this conversation the applicant would inevitably believe or might have believed that PW2 was a prostitute.  However, we find that it was possible to give the applicant such an impression by the combined effect of this conversation and the conversation between the two of them when they met that day, because during their first telephone conversation when PW2 learned that the job would require her to provide sexual services to customers, she did not show any surprise or unwillingness, nor did she indicate that she did not want to do such kind of work; she even arranged to meet the applicant.  When they met, although PW2 by then clearly knew that the job she applied for required her to provide sexual services to customers, not only did she not say that she had no experience in this field, she even asked the applicant ‘whether the customers would do SM’ and ‘whether they would refuse to put on a condom’.  She also said that she did not want to serve customers from Hong Kong.  All these were activities which could actually take place in a sexual transaction.  This Court cannot exclude the consideration that an applicant who was not a prostitute would be unlikely to say so explicitly that kind of sexual activity she did not want to take part in and that she unlikely would be so concerned about the nationality of the customers.  Judging from the contents of these conversations, it is possible that the applicant believed that PW2 was a prostitute, particularly because PW2 asked the applicant about the kind of sexual activity which she would carry out with customers after she arrived in Australia.  This point can at least show that the prosecution failed to prove beyond reasonable doubt that the applicant could not possibly believe that PW2 was a prostitute.
據本案的情況，首先，就算有關的廣告內容隱含着一些不道德交易的意思，這也不表示應徵者必定是娼妓。其次，本庭亦不認為申請人必然會相信或有可能相信凡應徵該廣告的人士都必定是娼妓。如果單獨考慮第二證人與申請人的第一次電話談話內容，本庭不認為有關的談話內容會必然令申請人相信或者可能相信第二證人是一名娼妓。但本庭認為有關的談話內容再加上雙方於當日會面時的對話整合起來就有可能給予申請人這個印象，這是因為第二證人在雙方進行第一次電話對話時，得悉有關工作是需要向客人提供性服務，但她當時沒有表示驚訝或抗拒，亦沒有表示不願意作這類性質的工作，她更與申請人相約會面。雙方會面時，雖然第二證人明顯已經知道她所應徵的工作是需要向客人提供性服務，但她不但沒有表示沒有這方面的經驗，反而詢問申請人：「客人會不會玩 SM」及「他們會不會不戴套」等問題，她更表示不想接待香港客，這些都是涉及性交易的實質行為。本庭不能排除一個可能性，這就是一名不是當娼的應徵者應該不會如此露骨地說出她不願意做的性行為模式及刻意關注客人的國籍。從這些對話內容來看，申請人是有可能相信第二證人是一名娼妓，尤其是第二證人曾向申請人查詢她到達澳洲後和客人進行性行為的模式。這一點最起碼顯示控方是未能在毫無合理疑點的情況下證明申請人是不可能相信第二證人是一名娼妓。

For the above reasons, we find that the prosecution failed to prove beyond reasonable doubt that the applicant committed this offence, and therefore we will grant leave to appeal.  We will treat the application as the appeal proper, allow the appeal and quash the conviction.
基於上述原因，本庭認為控方根本未能在毫無合理疑點的情況下證明申請人干犯了這項罪行，故此本庭批准申請，視申請為正式上訴。本庭批准上訴及撤銷定罪。

Alternative charge
交替控罪

Because the offence is not established, we need to consider the alternative charge.  Judge Yuen found that if there was evidence showing that the applicant had actually participated in arranging for another person to leave Hong Kong for the purpose of prostitution, then even though that person finally did not leave Hong Kong, the charge against the applicant was established.
由於這項控罪不成立，故此本庭需要考慮有關的交替控罪。阮法官裁定若果證供顯示申請人確實有參與安排另一名為了賣淫的人士離開香港，就算這名人士最終沒有離開香港，申請人被控的罪名都已經成立。

Judge Yuen was of the view that the role of the applicant was to recruit women who were interested in going abroad to work as prostitutes, while other work was basically done by the travel agency  and people working overseas.  He found that although PW2 had not yet given a firm reply as to whether she would take up the job so that the applicant had not made any arrangement for PW2 to go to the travel agency to go through the formalities, the applicant’s acts constituted an important part of the elements of taking another person out of Hong Kong for the purpose of prostitution.  If PW2 had agreed to take up the job, other procedures would have been carried out as a matter of course.  At this point, the applicant had essentially done her work.  But since Judge Yuen had found the applicant guilty of procuring another person to be a prostitute, he did not give a decision on the alternative charge.
阮法官認為申請人的角色是招攬有興趣到外國賣淫的女子，而其餘的工作基本上是由旅行社和外國的人士負責的。他認為雖然申請人因第二證人還未確實答覆會否出任該份工作而未安排第二證人到旅行社辦理手續，但申請人的行動已經構成將另一人為了賣淫而被帶離香港的部分重要元素，只要第二證人答應出任這份工作，其他程序便會順理成章地進行。申請人的工作到此基本上已經完成了。但由於阮法官已裁定「導致另一人賣淫」罪罪名成立，所以他不對這項交替控罪作出裁決。

Issue
爭議點

In this appeal, the issue concerning this charge is whether the victim has to be brought into or taken out of Hong Kong before a complete offence can be committed.
在本上訴，有關這控罪的爭議是受害人是否需要被帶進入或帶出香港才可構成一項完整的罪行？

The view of Mr. Ma, counsel for the applicant, is that the victim must have left or entered Hong Kong before this charge can be made out.  He relied on sections 57 and 59 of the Sexual Offences Act 2003 of the United Kingdom, the contents of which are:
代表申請人的馬維騉大律師的立場是受害人必須已經離開或進入香港才可構成這控罪。他引用英國 Sexual Offences Act 2003 第 57 及59 條，其內容指：

Trafficking into the UK for sexual exploitation
Trafficking into the UK for sexual exploitation

(1)A person commits an offence if he intentionally arranges or facilitates the arrival in the United Kingdom of another person (B) and either —
(1)A person commits an offence if he intentionally arranges or facilitates the arrival in the United Kingdom of another person (B) and either―

he intends to do anything to or in respect of [B], after B’s arrival but in any part of the world, which if done will involve the commission of a relevant offence, or
he intends to do anything to or in respect of, after B’s arrival but in any part of the world, which if done will involve the commission of a relevant offence, or

he believes that another person is likely to do something to or in respect of B, after B’s arrival but in any part of the world, which if done will involve the commission of a relevant offence.’
he believes that another person is likely to do something to or in respect of B, after B’s arrival but in any part of the world, which if done will involve the commission of a relevant offence.’

rafficking out of the UK for sexual exploitation
Trafficking out of the UK for sexual exploitation

(1)A person commits an offence if he intentionally arranges or facilitates the departure from the United Kingdom of another person (B) and either —
(1)A person commits an offence if he intentionally arranges or facilitates the departure from the United Kingdom of another person (B) and either―

he intends to do anything to or in respect of B, after B’s departure but in any part of the world, which if done will involve the commission of a relevant offence, or
he intends to do anything to or in respect of B, after B’s departure but in any part of the world, which if done will involve the commission of a relevant offence, or

he believes that another person is likely to do something to or in respect of B, after B’s departure but in any part of the world, which if done will involve the commission of a relevant offence.’
he believes that another person is likely to do something to or in respect of B, after B’s departure but in any part of the world, which if done will involve the commission of a relevant offence.’

According to paragraph 104 (section 57) and paragraph 110 (section 59) of the Explanatory Notes in respect of this statute issued by the English Home Office, these offenses can be committed only when the victim has entered U.K. territory or has left U.K. territory.  Mr. Ma did not cite any decision of the English Courts on these sections.  Mr. Ma submitted that according to his research, no Hong Kong case has ever discussed this issue, but in the following cases: HKSAR v. Chiu Kwok Ho（趙國豪）CACC 178/2003, HKSAR v. Lau Chi Yui（劉致睿）and another CACC 148/2004, HKSAR v. Yee Yiu-Sam CACC 530/2001, R v Wong Fu Keung CACC 158/1996, R v Chan Wing Lung and another CACC 250/1991, R v Li Lik CACC 50/1990, R v Soonthorn Chookiat Pravit CACC 301/1991 and HKSAR v. Pang Man Wai（彭文偉）and another CACC 250/2007, all the victims had been brought into Hong Kong.  Moreover, in Chiu Kwok Ho the trial judge took the view that the offence was complete once the victim was brought into Hong Kong.
根據英國內政部就該條例發出的「解釋文件」(Explanatory Notes)的 104 段（第 57 條）及 110 段（第 59 條），有關的罪行必須在受害人到達英國境內或離開了英國才發生。馬大律師沒有引用英國法庭就該條例作出裁決的案例。馬大律師指出根據他的研究，香港並沒有一宗案件曾就這個議題作出討論，但在以下案件（如 HKSAR v. Chiu Kwok Ho (趙國豪) CACC 178/2003，HKSAR v. Lau Chi Yui（劉致睿）及其他人士CACC 148/2004，HKSAR v. Yee Yiu-Sam，CACC 530/2001, R v Wong Fu Keung CACC 158/1996, R v Chan Wing Lung and another CACC 250/1991, R v Li Lik, CACC 50/1990, R v Soonthorn Chookiat Pravit CACC 301/1991 及HKSAR v. Pang Man Wai (彭文偉) and another CACC 250/2007）中所有受害人均已經被帶進香港。另外，在趙國豪一案，原審法官更認為當受害人被帶進香港時已構成了有關的罪行。

Miss Yam does not agree with Mr. Ma’s view.  She submitted that the offence in question is directed at the process in which a person is taken out of Hong Kong, not the acts of taking a person out of Hong Kong.  She said that to take a person out of Hong Kong for the purpose of prostitution necessarily involves a series of steps.  The purpose of the offence is obviously to prohibit any person from carrying out any of these steps, whether or not any person has actually been taken out of Hong Kong finally.
任律師不同意馬大律師的看法，她認為有關的罪行是涉及一名人士被帶出香港的過程，而不是帶出香港的動作。她認為將一名為了賣淫的人士帶出香港必定牽涉多項程序，有關控罪的目的明顯是禁止任何人進行任何有關的程序，不論最終是否有人確實被帶出香港。

Content of section 129
第 129 條的內容

The content of section 129 of the Crimes Ordinance is:
《刑事罪行條例》第 129 條的內容是：

‘129.Trafficking in persons to or from Hong Kong
「129.販運他人進入或離開香港

(1) A person who takes part in bringing another person into, or taking another person out of, Hong Kong for the purpose of prostitution shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 10 years.
任何人參與將另一人帶入或帶出香港，目的在於賣淫，即屬犯罪，一經循公訴程序定罪，可處監禁10年。

(2) It shall not be a defence to a charge under this section to prove that the other person consented to being brought into or taken out of Hong Kong whether or not she or he knew it was for the purpose of prostitution or that she or he received any advantage therefor.’
就根據本條提出的控罪而言，即使被控人證明上述的另一人同意被帶入或帶出香港，不論她或他是否知道此舉的目的在於賣淫，或證明該另一人因此曾接受任何利益，亦不得以此作為免責辯護。」

The opinion of this Court
本庭的意見

The wording of section 129(1) is different from that of sections 57 and 59 of the Sexual Offences Act of the U.K.  We therefore must construe section 129(1) on the basis of its own wording.  We consider that the phrase ‘A person who takes part in bringing another person into, or taking another person out of, Hong Kong’ has a broad meaning.  The section does not provide that the person who intends to engage in prostitution must have been actually brought into or taken out of Hong Kong.  It targets the people who take part in such a scheme and its purpose is obviously to attack illegal trafficking in people engaging in prostitution to or from Hong Kong.  The purpose of this provision will be seriously weakened if the offence is restricted to the stage when the people engaging in prostitution having actually entered or left Hong Kong.  We do not think that there is anything unclear or equivocal in the wording of section 129(1) which necessitates giving the benefit of the doubt to the applicant.
由於第 129(1) 條與英國 Sexual Offences Act 第 57 及 59 條所採用的字眼不盡相同，故此本庭必須根據第 129(1) 條本身的字眼作出闡釋。本庭認為第 129(1) 條的條文「任何人參與將另一人帶入或帶出香港」的含義廣泛，它並沒有規定企圖賣淫的人士必須實質地被帶入或帶出香港。它的重點是針對參與這個計劃的人士，其目的明顯是打擊涉及販運賣淫的人士進入或離開香港的不法行為，如果將這項罪行局限於這些賣淫人士確實已經進入或離開香港這個層面就會嚴重削弱了這條例的目的。本庭不認為第 129(1) 條的用詞不清晰或有模稜兩可的意思，因而要將疑點的利益歸予申請人。

Having said that, we are also of the view that this offence requires the prosecution to prove that the offender has made substantial and specific arrangements for bringing the person who is to engage in prostitution into Hong Kong or taking that person out of Hong Kong.  Many steps have to be taken in order to bring a person into or take a person out of Hong Kong for the purpose of prostitution: First, to recruit a person who is willing to become a prostitute; second, to make arrangements for this person to leave or enter the territory, for example, buy air tickets, apply for visa, liaise with members of the gang who work in the foreign territory and meet the person at the Hong Kong airport or the foreign airport.  These steps can be carried out by different people.  If the person who is to engage in prostitution has actually been brought into or taken out of Hong Kong, the people concerned certainly have taken part in the arrangements for ‘bringing another person into, or taking another person out of’ Hong Kong.  If that stage has not yet been reached, the Court will consider the extent to which  arrangements for carrying out the scheme have been made in order to decide whether the offence has been committed.  For instance, if the person who agrees to engage in prostitution has been brought to the airport or the border and all that remains to be done is for her to board the aeroplane or go through the border checkpoint in order to enter or leave Hong Kong, we think that under these circumstances, the requirements of this offence are satisfied, because substantial and specific arrangements have been made for bringing the person into or taking the person out of Hong Kong.
不過，本庭同時認為構成這項罪行必須證明犯罪者為了將這名賣淫人士帶入或帶出香港而進行了一些實質而具體的安排。犯罪者將一名人士帶入或帶出香港賣淫是要經過多個步驟的，首先要招攬一名同意賣淫人士，其次是而為這名人士的離境或入境作出安排，如購買機票、簽證、聯絡外國的黨羽及在本港或外國機場接待這名人士等，有關工作可由不同的人士負責。如果企圖賣淫的人士確實已被帶入或帶出香港，這些有關人士當然是有參與「帶入或帶出」香港的安排，但如果還未作出這些行動的話，法庭就會以他們為該項行動所作出安排的程度來考慮有關的罪行是否已經構成。舉例來說，若果一位同意賣淫的人士已被帶到機場或邊境，她只需要登上飛機或過關就可進入或離開香港，本庭認為這個情況已經構成了該罪行的元素，因為案件已存在將這名人士帶入或帶出香港的實質而具體安排。

In this case, the role of the applicant was to recruit people who want to go overseas as prostitutes , but she was arrested before she or other people taking part in this illegal scheme have taken any further action to arrange for PW2 to leave Hong Kong.  The applicant is not charged with conspiracy to traffick in persons to or from Hong Kong for the purpose of prostitution, and there is no evidence which shows that the applicant or other people have made any substantial and specific arrangements for taking PW2 out of Hong Kong.  In these circumstances, we do not think that the offence has been committed.  For the above reasons, we find that the alternative charge is not proved.
在本案，申請人的角色是招攬一些有意到外國賣淫的人士，但她在她或其他參與這非法行動的人士還未採取進一步行動安排第二證人離港之前就已經被捕。申請人並不是被控「串謀販運他人進入或離開香港賣淫」罪，本案亦沒有證據顯示申請人或其他人士已作出任何實質而具體的離港安排，在這情況下，本庭不認為有關的控罪已經構成。基於上述原因，本庭裁定這項交替罪罪名不成立。

Miss Sally Yam, Senior Public Prosecutor of the Department of Justice, for the Respondent.
答辯人：由律政司高級檢控官任可代表。

Mr. David Ma, instructed by Yaddy Cheung & Co., for the Applicant.
申請人：由張雅棣律師行轉聘馬維騉大律師代表。