1 This was an appeal by the Public Prosecutor against the decision of the district judge in the court below to acquit the respondent, Liew Kim Choo, of two offences under s 146(1) of the Women`s Charter (Cap 353), which reads:

2 The accused was brought to trial on the following charges:

3 and

4 At the close of the defence, the trial judge found that the prosecution had not proved its case beyond reasonable doubt and acquitted the accused of both charges.

5  Background

6 Lee Swee Ling (`PW2`) and Lee Phui Yoke (`PW3`) were prostitutes working in Singapore under the direction of one Lim How Kim (`PW4`), also known as `Ah Gu`.

7 On 16 April 1996, the Anti-Vice Branch of the Criminal Investigation Department (`AVB`) conducted a `sting` operation on prostitution activities involving PW2, PW3 and PW4. Corporals Lim Seng Chuan (`PW5`) and Lim Eng Yong (`PW6`) checked into Room 303 of the Rangoon Hotel, Singapore. Using a handphone, they dialed telephone number 7334267 and asked for girls to be supplied to them in the hotel.

8 At around 3.40pm PW2 and PW3 arrived at their hotel room. They negotiated the price of sexual services with PW5 and PW6. Once the price was agreed upon, a female Sergeant emerged from her hiding place in a cupboard and detained PW2 and PW3. After some questioning, PW2 and PW3 revealed that they had been brought to the hotel by PW4. They agreed to call PW4 and to ask him to come and pick them up from a location near the hotel. PW5 and PW6 together with Detective Lim Yew Boon (`PW8`) waited for PW4 at the pick-up point and detained him when he arrived. PW4 was driving a dark blue Honda registration number SBC 8968 R.

9 PW4 subsequently pleaded guilty to managing a place of assignation in his motor car registration number SBC 8968 R and to two charges of living off the earnings of prostitution. He was sentenced to one month`s imprisonment and a fine of $10,000 in respect of each offence. The respondent and her husband, one Tan Choo Peek, were arrested in connection with the charges against PW4 and charged on 17 April 1996. The respondent was charged with the two abovementioned charges and a third charge of managing a place of assignation. Her husband was also charged with management of a place of assignation.

10  The first appeal

11 The respondent`s husband was tried together with the respondent but the district judge did not call for their defences and acquitted them, finding that the prosecution had failed to establish a prima facie case. The public prosecutor appealed against the decision of the district judge. The appeal proceeded only on the two charges against the respondent of living off immoral earnings. The charge against the respondent`s husband was not proceeded with. The charge against the respondent of managing a place of assignation was similarly not proceeded with.

12 On appeal, the parties appeared before me. The public prosecutor argued that he had adduced sufficient circumstantial evidence from which it could be reasonably inferred that the respondent had committed the offences with which she had been charged. I was in agreement with the public prosecutor. In my grounds of decision [see [1997] 2 SLR 443] dated 31 March 1997 I stated [at [para ] 50]:

13 On a minimal evaluation of the evidence, I found that the district judge had erred in concluding that there was no case to answer. I therefore remitted the case to the district court for the defence to be called. The trial judge, having done so, concluded that the prosecution had not proved its case beyond reasonable doubt and acquitted the respondent. The case before me was therefore the second appeal against acquittal.

14  The charges against the respondent

15 The prosecution`s case was that the respondent, also known to friends and business associates as `Katherine`, was responsible for arranging for customers to patronise prostitutes working for `Ah Gu`. The respondent would contact `Ah Gu` whenever she had potential clients for his prostitutes. `Ah Gu` would also contact her from time to time to ask whether she had any clients for him. The number `Ah Gu` would use to call her was 7334267.

16 The telephone number 7334267 was registered in the name of Phoenix Escort Agency, the proprietor of which was the respondent. The respondent also used the same number for another business, Anna Beauty Salon, of which she was also the proprietor.

17 The prosecution alleged that Phoenix Escort Agency and Anna Beauty Salon were used by the respondent to cover her involvement in the prostitution business. Potential customers would contact her at 7334267 to ask for girls. PW4 would also contact her at 7334267 to ask for customers. The respondent was the middlewoman between the customers and PW4. The respondent would inform PW4 where the customers wished to meet the girls. PW4 would then arrange to send the girls to the designated premises.

18 Upon arrival at the premises, the girls would call 7334267 to inform the respondent that they had arrived. They never, however, knew the identity of the person who answered the phone at 7334267. After sex, the customers would pay the girls directly for the services rendered. The girls would then call 7334267 to ask for someone to pick them up. They would be picked up by PW4. They would keep some of the money for themselves and hand over the rest to PW4. PW4 would keep some for himself and pay the remainder to the respondent. This was the prosecution`s case.

19  The evidence against the respondent

20 The evidence against the respondent was largely circumstantial. She admitted that she used the telephone number 7334267 for her escort agency and beauty salon. Curiously, although the phone line for 7334267 was installed at an address in Tomlinson Road, the registered address for the respondent`s businesses was at Loyang Rise.

21 The respondent explained in evidence that her husband had once owned the residence at Tomlinson Road. At the time, she used the number at Tomlinson Road for her business. When her husband sold that property, she wished to retained the number so as not to lose her customers. She therefore preserved the line at the Tomlinson Road house, which was sold to a friend. She then purchased a handphone, telephone number 98183928, to which she transferred calls made to 7334267. Callers to number 7334267 were therefore redirected to the respondent`s handphone 98183928.

22 The respondent took out advertisements in Chinese newspapers offering:

23 The prosecution suggested that these advertisements, although purporting to attract business for her beauty salon, represented veiled efforts on the part of the respondent to attract customers for prostitutes. It alleged that `Miss Anna` was actually the respondent, Liew Kim Choo, the proprietor of Anna Beauty Salon. Persons responding to the invitation to call 7334267 for `services` would have their calls redirected to the respondent`s handphone, 98183928

24 The prosecution sought to establish some relationship between PW4 and the respondent. In his evidence-in-chief, PW4 admitted that PW2 and PW3 worked for him as prostitutes but claimed not to know the respondent. He also claimed that he alone determined the price the girls should ask for sex. In pleading guilty to the charges against him, PW4 had earlier admitted to a statement of facts which contained statements inconsistent with his evidence-in-chief. The DPP thus made an application under s 147 of the Evidence Act to cross-examine PW4. The district judge granted the application.

25 In cross-examination by the DPP on his statement of facts, PW4 admitted that he knew one `Anna` who had a `permanent wave salon` and that he would contact her at telephone number 7334267. PW4 said he knew her through newspaper advertisements. He stated that he would call `Anna` to ask if she had customers for his prostitutes. If there were customers, `Anna` would call him back on his handphone, number 98245913. The prosecution suggested that PW4 obtained customers from the same `Anna` referred to in the newspaper advertisements allegedly taken out by the respondent, ie that the respondent was supplying customers to PW4. The force of this suggestion was amplified by PW3`s evidence that that the name of the person she contacted at 7334267 was one `Miss Tan` - the respondent`s maiden name is `Liew` but her husband`s surname is `Tan`.

26 PW4, however, maintained his claim not to know the true identity of `Anna`. He did give evidence that `Anna` would inform him of the price customers were to pay. He also said he told his prostitutes to call the number 7334267 when they met their customers, to inform the person receiving the call that they had arrived. He testified that they did not call 7334267 to be picked up, but that they called him directly on his handphone. Because PW4 did not finger the respondent as being the person known as `Anna`, there was no direct evidence that the respondent had obtained his prostitutes through her. It was, however, the prosecution`s case that the circumstantial evidence inexorably supported the inference that `Anna` and the respondent were one and the same.

27 To reinforce this, the prosecution adduced telephone records showing that over 190 calls had been made from the respondent`s handphone 98183928 to PW4`s handphone number 98245913 between 1 April 1996 and 16 April 1996. Records were also adduced to show that a similar number of calls had been made from PW4`s handphone to either the respondent`s handphone 98183928 or her business number 7334267 over the same period. This revealed a constant and intensive course of communication.

28 Again, this course of communication did not necessarily show that the communication took place between the respondent and PW4, as the identity of the person who replied to calls made to 7334267 and 98183928 was never directly established. PW2, PW3 and PW4 claimed in evidence that they did not know the identity of the person who picked up the calls. PW4 said he only knew her as `Anna` and that he did not know her true identity.

29 The prosecution`s own witness, Shanti Ranjit Kaur, a Senior Customer Service Officer with the Telecommunications Authority of Singapore, admitted in cross-examination that although the respondent was the subscriber of the mobile phone bearing the number 98183928, it was not possible to determine the identity of persons using the phone, whether to place or receive calls. It would also not be possible to determine the identity of persons making calls to that handphone.

30 Nonetheless, the prosecution invited the court to make the damning inference that the person who received calls to 7334267 and redirected to 98183928, the person who had arranged for customers for PW4`s prostitutes, was the respondent.

31 The prosecution also had to show that the respondent had received a share of PW2 and PW3`s earnings. PW4 admitted in cross-examination that the person who introduced the customers would get a cut of the fee charged by his prostitutes. He said that on the day he was arrested, the person who introduced his customers was the caller at 7334267. In previous arrangements, the caller at 7334267 would also call PW4 to ask him to go to various places in City Plaza, Singapore, to hand over the cut earned by the caller at 7334267. He said he had handed over money to the driver of a white Mercedes motor car with the digits `8338` in its registration number. Again, the prosecution invited the court to draw the inference that calls to number 7334267 would also be re-directed to the respondent`s handphone 98183928 and that the person who had arranged to receive a cut of the earnings was the respondent.

32 The prosecution adduced another piece of incriminating evidence in support. In cross-examination of the respondent, the prosecution produced a photograph of a white Mercedes registration number SBD 8338 D. The respondent admitted this was her car. This was intended to show that the person to whom PW4 admitted he paid part of his earnings from the prostitution of his girls - the driver of a white Mercedes with number `8338` - had connection with or use of the respondent`s vehicle. The prosecution invited the learned district judge to infer that the white Mercedes bearing number `8338`, described by PW4 in his evidence, was the same vehicle owned by the respondent.

33 Still, this it did not necessarily establish that the respondent had received moneys directly from PW4. PW4 stated in his evidence that he had always paid the male driver of a white Mercedes whom he called `uncle`. The male driver of the white Mercedes was not produced. PW4 was emphatic that he could identify the male driver but said that he was not in court. It will be remembered that the respondent`s husband was jointly tried with her. PW4 did not identify the respondent`s husband as the driver of the white Mercedes. It was never established that money handed to the male driver would have found its way to the hands of the respondent.

34  The respondent`s denial of the evidence against her

35 In her s 122(6) statements, the respondent denied the charges made against her. In her long statement, she claimed that the telephone number 7334267 was used by `Anna Beauty Salon` in that she had several free-lance beauticians who would call her periodically to ask for work. She did not have contact numbers for the beauticians. They would contact her - she would not contact them. She would periodically receive calls from customers who would ask for facial treatments. She did not have contact numbers for her customers either. She would then tell a beautician who asked for work to go to that customer`s house to perform facial treatments. She also did not have a place of business. All the services were conducted at her customers` houses. The beauticians would collect the money for the services and bank a share of it into the respondent`s account. `Phoenix Escort Agency` was operated in the same way. Customers would call to ask for escorts, and they would be matched to escorts who called asking for business. The respondent was emphatic that she did not have the contact numbers of either the customers or the escorts. She claimed never to have met any of her employees (meaning the escorts and the beauticians).

36 She maintained her story in cross-examination. In her examination-in-chief, she again denied arranging appointments for sex with prostitutes. She denied knowing PW2 or PW3 or that she had received any part of their earnings as prostitutes. She also denied knowing PW4. She denied that either PW2, PW3 or PW4 had ever contacted her on 7334267.

37 The respondent denied having any contact with PW4 or any person using his handphone. The problem faced by the respondent at trial was that in her long statement, she had stated that nobody besides herself used the handphone number 98183928. Had the respondent maintained this story at trial, it would have led to the inexorable conclusion that she was the person making and receiving calls to and from the handphone of PW4. However, when confronted in cross-examination with the telephone records showing numerous calls from her handphone to that owned by PW4 and vice-versa, the respondent said that her friends and relatives would sometimes use her phone.

38 Over and above the general denial, the respondent also claimed ignorance of the specific calls allegedly made to her handphone via the telephone number 7334267 to arrange for the appointments on 16 April 1996 between PW2 and PW3 (the prostitutes) and PW5 and PW6 (the AVB officers) that led to the arrest, charge and conviction of PW4. Her story was that she had lost her handphone at a coffee shop in Changi a few days before being apprehended on 16 April 1996. This differed from the statement made by her husband to the police that the handphone had in fact been lost by him at Newton Hawker Centre some months earlier. The loss was not reported to the police or the Telecommunications Authority of Singapore. The respondent claimed that she had subsequently recovered the handphone from the person who found it and had paid him a reward. The account for the handphone was then transferred to her husband and the number changed. The number was changed, said the respondent, because she had been receiving nuisance calls.

39 The respondent admitted having taken out newspaper advertisements but denied any illicitness pertaining to that act. She insisted in her long statement that the wording she wanted was `Facial for men, customers can be local or foreigner, interested telephone 7334267`. When the translation of the actual text was read out to her, she said that the publisher had mis-translated her advertisement. When asked why she did not stop the advertisements, she said that she did not notice it as she could not read Mandarin.

40  Elements of the offence

41 The offence under s 146(1) constitutes four major elements that must be proved by the prosecution beyond reasonable doubt: (i). the fact that prostitution has taken place;

42  (ii). that earnings have been made from that prostitution;

43  (iii). that the whole or part of those earnings or the benefit of those earnings have been received by the accused; and

44  (iv). that the accused received those earnings or their benefit with the knowlege that they were earned through prostituion.

45 Fact of prostitution

46 First, there must be proof of prostitution of a person other than the accused. In the present case, both PW2 and PW3 admitted that they were prostitutes. However, whether one is a `prostitute` is a legal question and not one of self-nomenclature. It is necessary to go one step further and to examine whether PW2 and PW3 actually fell within the legal definition of the word `prostitute`.

47 Reference may be made to the decision of the Court of Criminal Appeal of the Federated Malay States in Koh Ah Peng & Anor v R [1939] MLJ 19 . This case concerned the question whether there was a difference between a `kept woman` and a `prostitute` for the purposes of s 6 of the Women and Girls Protection Ordinance, the statutory predecessor of s 146(1). McElwaine CJ took the view that a prostitute was a woman who offered herself indiscriminately to any man for payment. So long as she was `a woman who is kept habitually by one man and who is chaste in her relations with all other men [and] she cohabits with her keeper to the exclusion of all others`, she was not a `prostitute`.

48 I was of the view that PW2 and PW3 fell within the definition contemplated by the Court of Criminal Appeal. They admitted that they would attend to any man they were directed to by PW4 and that they would do so in exchange for money. It is necessary to supplement this observation by highlighting two local decisions, R v Lee Whoy Khoi [1937] MLJ 240 and Lim Hung Tong v PP [1964] MLJ 336 . The result of these two cases is the emergence of a principle that where the only evidence against an accused charged under s 146(1) of the Women`s Charter is the evidence of the prostitute himself or herself, corroboration of that evidence is highly desirable though not required as a rule of law. This principle appears to derive by analogy from the more familiar proposition that the court may presume a woman of immoral character to be unworthy of credit where she is the prosecutrix in an allegation of rape: see s 157(d) of the Evidence Act. However, this question in this case was easily resolved, as the evidence of either prostitute was corroborated by the evidence of the other as well as their pimp, PW4.

49 However, the first element of the offence was not satisfied merely because PW2 and PW3 were proven to be prostitutes for the purposes of s 146(1). There must be identifiable acts of prostitution. If specific details of prostitution are not available, such as the date, time and parties involved in the illicit activities, it must at the very least be established that: (i). within or around the time frame stipulated in the charge;

50  (ii). the person identified as a prostitute has indiscriminately offered his or her body for sex with another person in exchange for money;

51  (iii). that those offers have been accepted by a member or members of the opposite sex; and

52  (iv). that sexual intercourse between the prostitute and a member or members of the opposite sex has taken place.

53 The incorporation of the time element (ie that these matters must be proven to have taken place within or around the time period state in the charge) is to avoid the unwarranted imposition of liability on a person who happens to live off the savings of a former prostitute who has long since ceased to be in that profession.

54 Earnings must be made from prostitution

55 The second element of the offence is that there must be `earnings` as a result of the prostitution. If a prostitute offers himself or herself for sex and sex takes place but no money changes hands, then the offence is not made out. Thus, it is necessary to prove that the prostitute has received remuneration for that service, though not necessarily from the person with whom he or she has engaged in sexual intercourse.

56 Earnings or benefit thereof must be received by accused

57 The third important element is that the accused person must be living either in whole or in part on those earnings. This may be proved by his or her receipt of such earnings, or alternatively that the earnings of prostitution were applied in support of his or her daily living expenses.

58 Dealing first with the situation where earnings have been received by the person charged with the offence, I was of the opinion that it is unnecessary to consider the question whether such earnings can be said to have been `received` by the person charged if the money given by the customer to the prostitute is not traceable at common law to the accused. This would be the case, for example, if it has been banked into a mixed fund and money thereafter withdrawn from the bank account to pay the accused person. This would be too technical an approach. I was of the view that the accused person has received the earnings of prostitution, so long as he has received money he would not have received but for the fact of prostitution. It does not matter that this money comes directly from the customer into his hands, through the hands of the prostitute, or as is alleged in this case, through the hands of a third person.

59 Concerning the situation where the person charged does not actually receive money but accepts food, clothing and housing provided by the prostitute and paid for out of his or her earnings from prostitution, the issues are more sophisticated. This is because the broad wording of the statute lends itself to the construction that a child or sibling being supported by a prostitute is guilty of the s 146(1) offence. Even more far fetched is the scenario in which the prostitute donates some money each week to the beggar sitting in the corridor of her flat. The beggar is also guilty of the offence, provided he knows the donor to be a prostitute. Because this issue did not arise in the present case it was not necessary for me to decide whether there is some underlying mischief which the section was meant to deal with, nor was it necessary for me to proceed to the next step, that is, to develop a test that would allow the section to achieve its purpose without being lent to obvious injustice. However, I have highlighted the matter so that it might not be overlooked in future consideration of s 146.

60 Accused`s knowledge

61 The fourth and final element is one of mens rea. The person receiving the money must know that the money or sustenance he is receiving consists of or is derived from the earnings of prostitution. Thus, a man whose wife prostitutes herself is not guilty of the offence in accepting a gift or meal from his wife unless he knows that she earned the money to purchase the gift or meal from her prostitution.

62  Summary of evidence

63 Scant attention was paid to focusing the evidence onto the individual elements of the offence by the trial judge in the court below. Nor was a concerted effort made by counsel in this appeal. I think it is necessary to address the question whether these elements were proved by the prosecution`s evidence.

64 The fact of prostitution and earnings resulting from it was easy to establish. PW2 and PW3 admitted they were prostitutes. PW4 admitted he was their pimp and that he received money from the services they provided.

65 What remained to be established was that the respondent had received earnings as well and had done so with knowledge that the earnings resulted from prostitution. The circumstantial evidence against the respondent was fairly incriminating: (i). She admitted that the telephone number 7334267 was used by her businesses and that calls to that number were redirected to her handphone number 98183928. She admitted placing the advertisements in the Chinese newspapers. Even if one accepts that the content of the advertisement was mistranslated and that the respondent did not know this because she could not read Mandarin, it is indisputable that she knew and sanctioned that the person to be contacted for the services was `Miss Anna` at 7334267. The respondent admitted in evidence that she noticed the phone number and that it was correct. She would have been able to read the words `Miss Anna` in the advertisements as these were published in English.

66  (ii). PW4 testified he contacted one `Anna` at 7334267 to obtain customers for prostitutes. PW3 testified she contacted `Miss Tan` was 7334267. The respondent`s husband`s surname was `Tan`. PW2 and PW3 both testified it was a female voice who answered 7334267. The respondent did not suggest any identifiable person as someone who could have received and made all the calls from and to PW4`s handphone. There was thus evidence suggesting a nexus between PW4 and the person using the respondent`s handphone (ostensibly, the respondent).

67  (iii). The method in which the respondent conducted her escort and facial services businesses was unorthodox, not even retaining contact numbers of clients or employees. The prosecution`s suggestion that this provided a convenient cover for a prostitution ring was not without force.

68 The first major weakness in the prosecution`s case was that it could adduce only circumstantial proof that when either PW2, PW3 or PW4 called 7334267 to make the relevant arrangements for the prostitution of PW2 or PW3, the person with whom they dealt was necessarily the respondent. In other words, although PW4 admitted being connected with `Anna`, he did not go so far as to say that `Anna` and the respondent were one and the same person. It is therefore possible that he was in fact obtaining customers from someone other than the respondent who was using the respondent`s phone.

69  after The prosecution in its closing submissions invited the district judge to infer from the evidence that the identity of the person receiving calls made to 7334267 was indeed the respondent. There was ample basis on which the trial judge could have done so: (i). There was an overwhelming number of calls made from the respondent`s handphone to PW4`s handphone and from PW4`s handphone to the respondent`s handphone or the telephone number 7334267.

70  (ii). The calls made between the two phones occurred at all times during the day - meaning either that it was the respondent who answered or made the calls, or that the phone was in the constant possession of some other person who answered or made the calls, or if possession was retained by the respondent, that that person was constantly in the company of the respondent. The prosecution suggested the first alternative was the most likely of the three.

71  (iii). Even if one accepted the respondent`s story that she had lost her handphone around the time of her arrest, which seemed convenient for her defence, that would not explain why there were so many calls made between her handphone and that of PW4 even before she lost the phone.

72  (iv). If indeed someone other than the respondent had used the phone to call PW4, then the question would have been why she claimed to have exclusive use in her long statement. Even in cross-examination she said that her friends and relatives only used the phone sometimes.

73  (v). It would also have been difficult to explain why calls continued to be made from her handphone to PW4`s handphone and vice versa it had been lost, unless one was to infer that the person who found the phone quickly became intensely associated with PW4. The other explanation could have been that the phone was taken by the same friend and relative who used the phone to call PW4 before it was allegedly lost - in which case the question arose as to why the respondent had to pay to recover the phone (she said in evidence she paid a reward to the finder to recover it).

74  (vi). A further difficulty in the respondent`s story that the phone was stolen was the prosecution`s suggestion that the call-transfer facility for 7334267 was never disabled, so calls continued to be routed to the handphone even after it was stolen. This was based on the evidence of Inspector Bridget Goh, PW7. This was certainly hard to explain away.

75 The weight of the circumstantial evidence supported the inference that PW4 and the respondent were acquainted. However, the fact that I might have come to a different conclusion from the trial judge had I been in his position was not relevant, as I will later elaborate.

76 Further, the prosecution faced an even greater difficulty in proving that the respondent had received earnings of the prostitution. The trial judge had similarly rejected this suggestion. Again, the difficulty lay in the nature of the evidence against the respondent, principally, the evidence given by PW4. In the present appeal, I considered the proper treatment of PW4`s evidence to be pivotal. First, however, I thought it convenient to summarise the trial judge`s findings.

77  The trial judge`s findings

78 The trial judge found that the offence was not made out against the respondent. He found the respondent to be a credible witness. In his grounds of decision, he said of her:

79 The trial judge found that PW4`s evidence showed that the respondent had no connection with himself or the prostitutes. He also found that the prosecution was unable to show that the accused and PW4 were in contact with each other and that the calls made to number 7334267 were attended to by the accused. He therefore acquitted the accused.

80  Role of the appellate court

81 The issue in this appeal was not whether this appellate court, had it been in the trial judge`s position, would have made the inferences that the lower court refused to make, but whether the conclusions arrived at by the trial judge as to the facts proved or not proved were such that no reasonable trial judge would have come to those conclusions. Reference may be made to the decision of the Federal Court in Mulkh Raj Sharma v Shanti Sroop [1983] 2 MLJ 397 in which Abdul Hamid FJ, delivering the judgment of the court, stated that:

82 In Sheo Swarup and Ors v King-Emperor 1934 AIR 227(2) PC, Lord Russell of Killowen highlighted that, in exercising its power to review evidence and order a reversal of an acquittal, the High Court should always give proper weight and consideration to the following matters: (i). the views of the trial judge as to the credibility of the witnesses;

83  (ii). the presumption of innocence in favour of the accused, a presumption not weakened by the fact that he has been acquitted at his trial;

84  (iii). the right of the accused to the benefit of the doubt; and

85  (iv). the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses.

86 The obvious advantages enjoyed by the trial judge in being able to observe the demeanour of witnesses before coming to his conclusions whether to accept their evidence means that the appellate court must only reverse those findings when they are obviously unjustifiable. In Ameer Akbar v Abdul Hamid [1997] 1 SLR 113 , I re-stated the well-established principle that

87 The prosecution invited me, first, to reject the trial judge`s findings of fact; secondly, to accept the prosecution`s version of the facts and, finally, to draw the following necessary inferences from those facts: (i). that the person who communicated with PW2, PW3 and PW4 at the other end of the line assigned to telephone number 7334267 was the respondent;

88  (ii). that the respondent did not in fact operate beauty or escort services out of the businesses registered as `Anna Beauty Salon` and `Phoenix Escort Agency` but that the advertisements for facial treatments were to attract customers for prostitutes and the `escorts` dispatched to those customers were in fact prostitutes;

89  (iii). that in answering the calls of PW2, PW3 and PW4, the respondent was connected to PW2, PW3 and PW4 in a fashion that went beyond the accidental, social, casual or innocent, ie that she actively participated in procuring and supplying prostitutes for the customers who responded to her advertisements; and

90  (iv). that that the respondent would not do all these things for free, and that she had to have received some benefits in exchange for the effort she had undertaken to arrange sexual services for her customers.

91 In considering the prosecution`s invitation, I started by directing myself to two questions. First, what was the proper approach to assessing circumstantial evidence at the close of trial, and secondly, what weight was to be attached to the circumstantial evidence in the present case such that the correct inferences could be drawn from it? I would then have to consider further whether the trial judge`s conclusions were so obviously wrong that the appeal should be allowed.

92  Assessing the evidence - the prosecution`s standard of proof

93 I do not propose to discuss the standard of proof required of the prosecution as it has received extensive treatment elsewhere. The skeletal arguments submitted by the DPP raised one matter that I was compelled to consider, namely, where the facts in issue have not been proved by direct evidence, and the court is asked to infer those facts from circumstantial evidence, may the court infer that those facts in issue are proved if it thinks it more likely than not that those are the correct inferences or can the court only make such inferences if it is satisfied beyond a reasonable doubt that those inferences are proper?

94 The DPP in his skeletal arguments highlighted my grounds of decision in the related MA 243/96 - this was the prosecutor`s appeal against the trial judge`s finding that there was no case to answer. It will be remembered that I allowed that appeal and concluded that a prima facie case was made out against the respondent. The DPP appeared to suggest that, since I had accepted his version of the facts in issue for the purposes of calling the defence, I should be like minded in deciding the issue of guilt.

95 I did not agree with this. I was of the view that I was not in any way bound by my conclusions in MA 243/96 for those conclusions were not an adjudication of the respondent`s guilt. As Lord Diplock stated in the leading case of Haw Tua Tau v PP [1981] 2 MLJ 49 ; [1980-1981] SLR 73:

96 The prosecution must, at the end of trial, go beyond what it must show at the close of the prosecution`s case. At the close of the prosecution`s case, the prosecution need only raise a prima facie case which, if uncontradicted by the defence, would justify a conviction. That case could be made out of proved facts or reasonable inferences drawn from the proved facts. The nature of the inferences as to primary facts that must be drawn at the close of the prosecution`s case were described by Lord Diplock in Haw Tua Tau as follows:

97 For obvious reasons, in deciding the issue of guilt at the close of the trial, this standard will not suffice. The evidence must be subjected to the highest, not lowest standard of scrutiny. The facts proved by the prosecution must therefore satisfy the trial judge beyond reasonable doubt that the correct inference to be drawn from those facts is that the accused person is guilty. The trial judge is not allowed to act on the presumption that the primary evidence is true. Nor is he to make only a minimal assessment - to decide if the necessary inferences `would reasonably be drawn`. He must make a maximum assessment - to decide if he has no reasonable doubt that those are the correct inferences to make. In this regard I would refer to the dicta of LP Thean J, as he then was, in Tan Siew Chay v PP [1993] 2 SLR 14 , where, having cited the same passage of Lord Diplock which I have quoted relating to s 189(1) he said:

98 I therefore had to consider the evidence afresh, without reference to my conclusions in the first appeal, which conclusions were premised on a different standard of proof. In applying the maximum assessment approach, the trial judge was not prepared to make the necessary inferences to convict the respondent. The question before me was whether he had erred in so doing - whether that decision was obviously wrong.

99  Whether charges made out against respondent

100 In view of the extensive circumstantial evidence adduced by the prosecution, it was certainly tempting to reverse the decision of the lower court and to convict the accused.

101 There was evidence suggesting that PW4 and the respondent had been in communication for the first two weeks of April 1996. It would have been possible, in the light of the evidence of the intensive communication between PW4 and the respondent`s handphone, to infer that they were involved in some activity. The key difficulties lay in determining that the activity was the supply of customers for prostitutes and that the respondent had received earnings from that prostitution. The former requirement - to prove that the respondent had assisted in the prostitution - was not necessary for the purposes of the charge under s 146(1) but only for the purposes of the deeming provision under s 146(3). I will deal with this at the appropriate juncture.

102 The only evidence capable of directly supporting these infererences were contained in the statement of facts which PW4 had admitted when he pleaded guilty. He was cross-examined on this statement under s 147(1). It is convenient to set out the relevant portions of the statement of facts:

103 For reasons which I will now elaborate, I came to the conclusion that it was not possible to draw the inferences from this circumstantial evidence that the respondent supplied customers for PW4 or that she had received the earnings of prostitution. While these might have been proper inferences on the balance of probabilities, I was not persuaded beyond reasonable doubt that these inferences should have been drawn.

104  The statement of facts

105 The principal question was to what extent it would have been possible to adopt the statement of facts relating to the charges to which PW4 had pleaded guilty to prove the charges against the respondent. It was arguable that such a statement might be admitted to prove relevant facts, particularly that incriminating acts had taken place during the time period specified in the charges. To sustain this argument, the following propositions would have to be relied upon: (i). A statement of facts to which a person charged with an offence pleads guilty is an admission within the meaning of s 17(1) of the Evidence Act by virtue of s 20 of the Evidence Act which reads that:

106  (ii). Such a statement is capable of amounting to a `confession` within the meaning of s 17(2) of the Evidence Act. A `confession` is defined as `an admission made at any time by a person accused of an offence, stating or suggesting the inference that he committed that offence`.

107  (iii). Such a statement, being made by a person in the presence of a magistrate, but whilst in the custody of a police officer, would not be subject to the general rule contained in s 26 of the Evidence Act prohibiting proof of the confession against him.

108  (iv). If the person making the confession (that is, admitting a statement of facts) is a witness in subsequent proceedings, he may be cross-examined on that statement under s 147(1) of the Evidence Act if he gives evidence which is inconsistent with his previous statement (ie the confession).

109  (v). Where a person has been cross-examined under s 147(1) on a previous inconsistent written statement, that statement may be admissible as evidence of any fact stated therein under s 147(3) of the Evidence Act.

110 If the statement of facts was indeed admissible, then it would have been possible to adopt it and to draw the necessary inferences concerning the receipt of earnings from that statement, provided that that evidence went uncontroverted. However, I was alive to the possibility that, before so doing, the weight of the statement of facts might be called into question owing to a line of decisions in England and India suggesting that the guilty plea of an accused cannot be evidence against another accused person.

111 The English authorities have categorised this conclusion as a rule of evidence - that other than in the proceedings in which he has pleaded guilty, a plea of guilt is not evidence that the person pleading guilty has committed those acts. In R v John Turner [1832] 1 Mood 347 , one Sarah Rich confessed to stealing 200 sovereigns from her employer. John Turner was charged with felonious receipt of 60 of those sovereigns. The trial judge admitted Sarah`s confession and, relying on that together with other evidence, convicted John Turner. It was subsequently held that the confession was not evidence against John Turner, and his guilt must be proved by other means. It was further held that even had Sarah Rich pleaded guilty to theft, the guilty plea would not have been evidence against John Turner. The acts allegedly committed by Sarah Rich would have to be proved aliunde .

112 In R v Moore [1956] 40 Cr App Rep 50 , the Court of Criminal Appeal comprising Lord Goddard CJ and Hilbery and Byrne JJ held that where two men were indicted together and one pleaded guilty, the fact that one had pleaded guilty was not evidence against his co-prisoner All that could be said was that the co-prisoner had been found in the company of one who had pleaded guilty.

113 The principle that emerges from these two decisions - that a guilty plea of accomplice A is not good evidence against accomplice B - seems to be a derivative of or corollary to the common law rule that where two co-accomplices are charged together for same or similar offences and tried at the same trial, a confession made by one accomplice is not admissible to prove the guilt of the other: see, for example, R v Gunewardene [1951] 2 KB 600 for this proposition of English law. The position in England is thus that, if A`s confession cannot be used to prove B`s guilt, neither can A`s guilty plea. The scope of the English common law rule against use of co-accused confessions has been the subject of judicial consideration in Singapore.

114 In Chin Seow Noi v PP [1994] 1 SLR 135 , the Court of Appeal considered that the effect of s 30 of the Evidence Act was that where two or more persons are jointly tried for the same offence, a confession made by one accused may not only be taken into consideration as against the other accused person, but that s 30

115 In coming to this conclusion, the court considered that illustration (b) of s 116 of the Evidence Act which reads that `the court may presume that an accomplice is unworthy of credit and his evidence needs to be treated with caution` did not support the proposition that accomplice evidence had to be corroborated before it was safe to convict upon it. Rather, the rule requiring corroboration had been removed by s 135 of the Evidence Act, which reads that

116 Quite clearly, the effect of the Chin Seow Noi decision is to acknowledge that the common law rule against convicting an accused person on the confession of a co-accused when they were tried jointly for the same offence is abrogated by statute, a decision which I was not only bound by but also consider to be on all fours with the meaning of the relevant provisions in the Evidence Act. However, the question whether the abrogation of that common law rule would also abrogate the rule in R v John Turner and R v Moore is quite a separate question, for the rule in these cases refers to the use of a guilty plea (as opposed to a confession) against the accomplice.

117 It is fair to say that s 135 of the Evidence Act has abrogated the rule requiring a judge to warn himself against convicting one accomplice without corroborative evidence of the other accomplice. However, to say that the Chin Seow Noi decision was attributable exclusively to s 135 would be not only contrary to the reasoning of the Court of Appeal, but would also suggest that s 30 was superfluous. The court relied on both s 135 and s 30 in coming to its conclusion that accomplice evidence was good evidence to secure a conviction.

118 Section 5 of the Evidence Act provides that all rules of evidence not contained in any written law, so far as such rules are inconsistent with any of the provisions of this Act, are repealed. In other words, common law rules apply unless inconsistent with the Act. The common law rule in R v John Turner pre-dated the Act. It was a decision of 1832 and the rule therefore applies in Singapore unless abrogated by statute. I am of the view that whilst the common law rule against convicting an accused person on the confession of another accused person jointly tried with him for the same offence may have been removed by the combined effect of ss 30 and 135, this was not the case as regards the rule in R v John Turner . There is no provision in the Evidence Act prescribing that a person`s plea of guilt is evidence against an accomplice to the crime to which that person had pleaded guilty. There is no corresponding section like s 30 to which s 135 may be mated so as to abrogate the rule. The rule therefore must stand.

119 In support of this, I was mindful of the consideration that, if I were to take the position that s 135 alone conclusively removed the requirement for corroboration of accomplice evidence in all cases, it would render illustration (b) of s 116 nugatory. Section 135 has to operate in conjunction with s 30 to override the effect of s 116 illustration (b). In other words, illustration (b) of s 116 must be of general application except where the provisions of the Act prescribe otherwise, for example, in the situation before the Court of Appeal in Chin Seow Noi . I was not moved to find that the present case was one in which the presumption in illustration (b) of s 116 was inapplicable, the reason being that there is no section which can be matched to s 135 to abrogate the rule in R v John Turner .

120 I hasten to add that, returning to the guiding principles set out in s 5 of the Criminal Procedure Code and s 2 of the Evidence Act that English common law rules apply in Singapore, except to the extent they are inconsistent with statute, the rule in R v John Turner would be qualified if a plea of guilt were relevant and admissible under a statutory provision. Thus, if a plea of guilt (or for that matter a statement of facts) amounted to an admissible `confession` or `admission` within the meaning of the Evidence Act, the operation of the rule in R v John Turner would be precluded as a result. It is noteworthy to add that the rule in R v John Turner and R v Moore now appears to have been legislatively overruled in England by s 74 of the Police and Criminal Evidence Act, which allows proof of the conviction of one co-defendant (including a guilty plea) to be used against another. This conclusion was not available to me in the absence of a statutory equivalent to s 74. I therefore confined myself to the question whether a guilty plea and its attendant statement of facts may be admitted as a `confession` in our law.

121 The question whether such a plea of guilt does indeed amount to a confession has been treated in Indian law. This issue was touched upon by the Indian High Court in Shyama Charan Bharthuar & Ors v Emperor 1934 AIR 330 Pat. The Indian High Court did not couch the objection to the use of a guilty plea in other proceedings so much in terms as a rule of evidence as to come to that basis on an analysis of the conceptual nature of a guilty plea. It seems to have drawn a distinction between (i) confessions, which, being admissions of incriminating facts, are admissible as evidence in all cases where those facts are relevant and (ii) pleas of guilt, which are not relevant to prove facts other than in the proceedings in which the plea is heard.

122 In Shyama Charan Bharthuar , it was argued before the Indian High Court that a guilty plea was a confession for the purposes of the Evidence Act. It was further argued that where a plea of guilt had been illegally accepted by the judge, that confession was irrelevant by virtue of s 24 of the Indian Evidence Act (in pari materia with s 24 of our own Evidence Act). The Indian High Court rejected the contention that:

123 taking instead the view that a plea of guilt

124 The analysis of the Indian High Court was therefore that the guilty plea was merely the basis on which the court could dispose of the need to hear evidence in order to adjudicate on the pleader`s guilt. It was effective only in those proceedings. It could not be used in other proceedings as evidence that he had committed those criminal acts.

125 How does the Indian High Court`s treatment of the guilty plea compare with the Singapore courts` approach to the statement of facts? The starting point is the decision of the Court of Appeal in Mok Swee Kok v PP [1994] 3 SLR 140 . In Mok Swee Kok , a specially convened Court of Appeal consisting of Yong Pung How CJ, Karthigesu and LP Thean JJA, Lai Kew Chai and Warren Khoo JJ pronounced that:

126 This statement confirmed for Singapore courts an attitude that was well-established in the Malaysian courts. In PP v He King Kiok [1992] 2 MLJ 781 , Selventhiranathan J, sitting in the High Court at Kuala Lumpur, acknowledged that:

127 In that decision, Selventhiranathan J considered the effect of s 5 of the Malaysian Criminal Procedure Code which provides that

128 Our own Criminal Procedure Code contains an identical s 5. Selventhiranathan J then went on to adopt as a good statement of Malaysian law the view of the English Court of Appeal in its` Practice Direction [1968] 3 All ER 434 that one of the foremost purposes of the statement of facts was to preserve the right of the press and public to `know the circumstances of the crime for which an accused is convicted and sentenced`. In its Practice Direction, the Court of Appeal considered this purpose to be of equal or greater importance than the need to have a point of reference for determining sentence. The Court of Appeal therefore directed that even in offences for which there is a prescribed mandatory sentence, such as murder, the absence of judicial discretion in deciding sentence does not allow the prosecution to refrain from disclosing a statement of facts. By virtue of s 5 of our own Criminal Procedure Code, this is a also a statement of Singapore law.

129 How does this compare with the analysis suggested by the Indian High Court? The courts` function in Singapore, Malaysia, India and England is identical. It is protective of the accused person - to ensure that the facts admitted to by the accused disclose the offence to which he has pleaded guilty. In Singapore, Malaysia and England there is an element of public disclosure to reinforce this protective function, namely, the pronouncement of the statement of facts. However, in these four jurisdictions the court`s legal duty to ensure that the statement of facts discloses the elements of the charge does not require the court to be satisfied beyond reasonable doubt that the facts stated therein took place. The facts contained in the statement of facts are not proved facts. Rather, the court is entitled to presume upon those unproved facts for the purposes of convicting and sentencing the accused person.

130 When a court presumes upon the facts stated, the accused`s plea of guilt and admission to the statement of facts operate in a way as an estoppel in those proceedings only - and I wish to emphasise that I use that word for convenience without any intention to refer to the legal doctrine associated with it. The accused is not permitted to appeal against his conviction but only his sentence, although a court exercising its revisionary jurisdiction may acquit him of the offence in certain circumstances: see Mok Swee Kok . This is one aspect of the statement of facts that is readily identifiable with the reasoning in Shyama Charan Bharthuar & Ors v Emperor . In both India and Singapore, the guilty plea and statement of facts are not formal evidence against the accused. They are merely devices relied upon by the court in convicting the accused. Provided the accused is aware of the nature and consequences of his plea, no investigation into the truth of the plea of guilt or the statement of facts is undertaken. The truth of the statement of facts is uncontrovertibly presumed for the purpose of convicting the accused. This does not, however, `estop` the accused from denying that statement in separate proceedings.

131 In deciding whether or not a statement of facts amounts to a confession for the purposes of our laws, in particular whether it can be used as evidence in other proceedings, the decision of the Indian Court of Appeal in Shyama Charan Bharthuar is less instructive. This is because the Indian courts, unlike the courts of England, Singapore and Malaysia, do not require the prosecution to adduce a statement of facts as a rule of practice. Instead, the accused is invited to plead and to make a statement. An Indian court is thereupon under a duty to satisfy itself by putting questions to the accused in order to see whether he is aware of the facts on which the charge is founded against him and also whether he has admitted his guilt voluntarily without any extraneous pressure or expectation of lenient sentence.

132 The absence of a statement of facts from the Indian system may explain why the bare plea of guilt is not viewed as a confession in that country. The proposition that a bare plea is an `admission ... stating or suggesting the inference that [the accused] committed that offence` carries less force compared to the proposition that a statement containing the material particulars of an offence and admitted to by an accused person amounts to a confession under s 17(2) of the Evidence Act. The wording of s 17 is wide enough to catch the statement of facts if not the bare plea of guilt.

133 I therefore took the view that the statement of facts, properly classified as a confession for the purposes of s 17, was a statement made by PW4. It was a statement on which he could properly be cross-examined under s 147 of the Act. I also found that if such a statement was properly proved against him, the statement could be used as proof of the facts stated therein by virtue of s 147(3) of the Act which reads that

134 There was, however, nothing magical about the conclusion that PW4 had, by virtue of his plea of guilt and admission to the statement of facts, confessed to the facts stated therein. Unlike in Chin Seow Noi , s 30 did not apply in the present case to elevate the confession to the level of evidence upon which a conviction of the respondent could solely be based - this was not a joint trial of co-accused persons charged with the same offence. PW4 and the respondent were tried separately. Because of illustration (b) of s 116, PW4`s evidence had to be treated with caution.

135 In coming to this conclusion, I was persuaded by numerous factors which militated against treating an accused person`s statement of facts as evidence which could, on its own, convict the accused`s accomplice: (i). There were reasons why a person might plead guilty and admit to a statement of facts even though he was innocent and the statement of facts untruthful. These reasons include (a) a very strong prosecution`s case which might be premised on evidence that is difficult to rebut; (b) a belief that it is better to plead guilty in the hope of a light sentence rather than to risk conviction and a heavier sentence; (c) his having been advised by his lawyers to plead guilty because they believe the likelihood of his conviction to be strong although he is not actually guilty; and (d) the accused falling outside of the category of persons eligible for legal aid and yet being unable to afford expensive legal representation, especially in complex cases.

136  (ii). The statement of facts is not in fact prepared by the accused or even prepared based on an interview with him. It is made by the investigation officer or Public Prosecutor based on the evidence they have against the accused. The accused person does not sign the statement of facts. The statement of facts cannot therefore be accorded the same weight as a statement made to the police. Furthermore, a suspect is unlikely to make a false confession to the police unless he was under duress or threat. This contingency is provided for by statutory provisions excluding the proof of such confessions. However, a suspect may falsely plead guilty for the reasons I have set out. As a false guilty plea can only be reversed by revision, the only safeguard is to subject such pleas to careful scrutiny so that their proper weight can be determined.

137  (iii). Furthermore, as I have said, the judge`s duty in accepting the statement of facts is not to scrutinise every detail to make sure that it is accurate. He is only required to be certain that the accused has admitted all material particulars to the offence. See the judgment of LP Thean J, as he then was, in Chota bin Abdul Razak v PP [1991] 2 MLJ 77 ; [1991] SLR 675 in which my learned friend held that:

138 However, it goes without saying that details which are not material to the accused person`s conviction may be material to the conviction of an accomplice. In the present case, the statement of facts admitted to by PW4 contained details which incriminated the respondent, namely, that PW4 had paid money which he received from the prostitutes to a male driver of a white Mercedes (ostensibly, the respondent`s agent). However, these details, although greatly probative of the respondent`s guilt in the present appeal, were not relevant to the charges against PW4 and had these details been inaccurate, the statement of facts would not have been objectionable for the purposes of PW4`s conviction. To then proceed upon those potentially inaccurate and unproved facts in prosecuting the respondent would be unsound as that part of the statement of facts may be false but taken for truth. It would then be unsafe to hang the respondent`s conviction on the thread of the `immaterial` parts of PW4`s statement of facts.

139 I therefore considered that the statement of facts had to be treated with great circumspection. Whilst it contained particulars material to the charges against PW4 which were also relevant to the charges against the respondent - for example, the fact that PW2 and PW3 were prostitutes, that they had prostituted themselves between 6 March 1996 and 16 April 1996 for money, and that they had received money for sexual services and given some of that money to PW4, the critical allegation that PW4 had passed on money to the respondent was not a material particular for the purposes of PW4`s plea of guilt.

140 This allegation, contained in the statement of facts, was the only evidence suggesting that the respondent had received the earnings of prostitution. It was, moreover, not only circumstantial evidence, but also evidence disputed by PW4 when examined in chief by the prosecution and again by counsel for the respondent in cross-examination. The weight of the statement was further diminished because it contained inconsistencies even within itself. In para 4 of the statement, it was alleged that the customers were charged $100 for sex of which PW4 retained $30 and the girls retained $70. However, in para 5, it was alleged that `the accused [ie PW4] charged `Anna` $100 per service that his girls provided`. This suggested that Anna was paying PW4. In para 5, it was alleged that `The accused handed Anna`s customer`s money to a male Chinese whom he addressed as Uncle`. This suggested the reverse position, that PW4 was paying Anna. Further, if, as it was alleged, that PW4 charged $100 for services, which was divided into shares of $70 (for the girl) and $30 (for himself), what, if at all, would he have remitted to Anna?

141 Compounding these difficulties with the forcefulness of the trial judge`s findings of fact that PW4 was to be believed on his assertion that he had no connection with the respondent, I was not prepared to find that the respondent had received the earnings of prostitution. It could not be said that the trial judge was obviously wrong in deciding as he did. In conclusion of my analysis of the usefulness of a statement of facts in other proceedings, I reserved my opinion on the question whether, had the respondent and PW4 been jointly tried, and s 30 had applied, the statement of facts would be subject to the same degree of scrutiny I had subjected it to.

142  The deeming provision

143 One final point deserved consideration. This concerned s 146(3) of the Women`s Charter which provides that:

144 The prosecution did not seek to rely on this provision notwithstanding the difficulties in their case. Nonetheless, I thought it appropriate to consider whether this deeming provision should be applied in the present case to circumvent the prosecution`s failure to establish beyond reasonable doubt that the respondent had received the earnings of prostitution. If it were to apply, then the fourth and final element of the offence might be presumed unless the respondent proved otherwise on a balance of probabilities.

145 For the deeming provision to take effect, the prosecution must have proved beyond reasonable doubt that the respondent either (i) lived with or was habitually in the company of any prostitute or (ii) exercised control, direction or influence over the movements of any prostitute in such a manner as to show that the respondent aided, abetted or compelled her prostitution with any other person or generally.

146 The first alternative was not part of the prosecution`s case.

147 Insofar as reliance on the second alternative was concerned, the only evidence of this was the assertion contained in PW4`s statement of facts that he had obtained customers through the respondent. The only other possible evidence was that of PW2 and PW3 that they contacted a person at 7334267. Even if we assumed that this person was the respondent, PW2 and PW3`s evidence was that they informed this person that they had arrived at the designated premises. This did not prove that the respondent had controlled, directed or influenced their movements, although it might fairly be said that the respondent had an interest in their movements.

148 As such, I was again presented with the predicament of whether to reject the trial judge`s findings based on his observations of the witnesses in favour of the unreliable statement of facts. Although on the evidence I was prepared to accept that many phone calls took place between PW4 and the respondent, those phone calls would be innocent unless it was proved that PW4 had obtained customers for prostitutes during those calls. Otherwise, it could not be said that the respondent had controlled, directed or influenced the movement of the prostitutes.

149 The character of these telephone calls could only be tainted by the allegations in para 5 of the statement of facts that PW4 had obtained customers for his prostitutes from the respondent. However, as with the allegations concerning the receipt of earnings, these allegations were totally irrelevant to the charges against PW4 but were of critical importance to the charges against the respondent. The statement of facts was therefore of diminished weight insofar as it could be applied to attribute an illicit character to the telephone conversations between the respondent and PW4. I was therefore of the opinion that the prosecution had not proved the necessary facts to bring the deeming provision into effect. The prosecution thus had to prove the fact of receipt of earnings independently, which, as I have already discussed, they failed to do.

150  Conclusion

151 At its very highest, all that could be said of the prosecution`s case was that it proved that there were two prostitutes, PW2 and PW3, who had, between 6 March 1996 and 16 April 1996, prostituted themselves under the direction of PW4, and that it was possible or likely that PW5 had assisted in the arrangements and that it was possible or likely that she had received money for it. However, in view of the difficulties I have already discussed at length, I was not prepared to find the charges against the respondent proved beyond reasonable doubt . I therefore dismissed the appeal of the public prosecutor.