Chiu Yiu-hung and Others v. The Queen
Read the full judgment text of CACC 139/1978 on BabelCite. This Court of Appeal judgment.
1. This is an appeal against conviction. In the court below there were a total of 16 defendants. Some of them were acquitted and a large number of the convicted defendants now appeal to this Court against conviction. The 1st to the 3rd defendants are now the 1st and the 3rd appellants respectively; the 5th defendant, the 4th appellant; the 7th defendant, the 5th appellant; the 8th defendant, the 6th appellant; the 10th to the 12th defendants now the 7th to the 9th appellants respectively; the 14
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IN THE HIGH COURT OF JUSTICE (Appellate Jurisdiction) CRIMINAL APPEAL NO.139 OF 1978 -----------------
----------------- Coram: LI, J. Date of Judgment: 31st March, 1978 at 3.30 p.m. David Wong (Thomas Wang & Co.) for appellant Hawker c.c. for respondent ----------------- JUDGMENT ----------------- 1. This is an appeal against conviction. In the court below there were a total of 16 defendants. Some of them were acquitted and a large number of the convicted defendants now appeal to this Court against conviction. The 1st to the 3rd defendants are now the 1st and the 3rd appellants respectively; the 5th defendant, the 4th appellant; the 7th defendant, the 5th appellant; the 8th defendant, the 6th appellant; the 10th to the 12th defendants now the 7th to the 9th appellants respectively; the 14th defendant, the 10th appellant and the 15th defendant, the 11th appellant. I shall refer to them as appellants in that order accordingly. 2. The first four appellants are convicted of the offence of keeping a brothel and the 5th to the 11th appellants are convicted of the offence of aiding and abetting the keeping of a brothel. The charge is that the first four appellants were keepers of a premises at 190-192 of Tai Po Road, mezzanine floor and used the premises as a brothel. The other defendants, the 5th to the 11th appellants are convicted of being the persons who aided and abetted the keeping of that brothel. Fines were imposed in various sums on each of them but that need not concern us. 3. The evidence in the case is relatively simple. On the 12th of July last year there was a police raid of the premises known as the Sing Sing Ballroom and the Wah Yuen Apartment which are located on the same floor in the same address. The premises had previously been raided and were well known to the police. It is pertinent to observe that the Sing Sing Ballroom and the Wah Yuen Apartment, though on the same floor, had separate entrances. The evidence disclosed that before the raid on the 12th of July last year two police officers were dispatched to act as decoys to the Sing Sing Ballroom a bit earlier before the raid took place. The two of them went individually to the Sing Sing Ballroom. There they were ushered into a seat where girls were introduced to them. At the very outset of the conversation between these two constables and their respective girls could only be described as negotiating price for what was called a big hour or a small hour so that they could take the girls somewhere else. After that the girls took them to the Wah Yuen Apartment which was practically next door to the Sing Sing Ballroom. They each hired a room. Acts of intimacy took place. By that, I meant every indecent act was performed short of sexual intercourse. 4. At the raid the Wah Yuen Apartment was searched as was the Sing Sing Ballroom. I will not repeat the details of the evidence. Suffice it to say that there was ample evidence to hold that the Wah Yuen Apartment was nothing but a brothel. At least five to six rooms were occupied by couples of male and female. They were at various ages of dress and undress. There is evidence that acts of indecency took place in the form of masturbation. In one or two cases they even had sexual intercourse. Thus, there is no doubt in the mind of anyone, not to mention the learned magistrate who tried the case, that the Wah Yuen Apartment was nothing but a brothel. The only requirement at that charge was to find out how the various appellants were connected with this brothel. For this, the prosecution relied to a large extent on the cautioned statements of the individual appellants, one by one. I will go on to examine what were the connections between the Sing Sing and Wah Yuen, and the connections of each and every appellant with the Wah Yuen Apartment or the Sing Sing. 5. Speaking of the connection between the Sing Sing and the Wah Yuen there both establishments were located on the same floor, practically adjacent to one another but for the separation of a lift in the corridor and the two separate entrances. The Sing Sing Ballroom occupied the units 'J', 'G' and 'F' and the Wah Yuen 'A' unit and 'B' unit of the same floor. All that the customers of the Sing Sing had to do after they had negotiated the remuneration to walk out of the Sing Sing for a few steps and enter the Wah Yuen. The customers would pay a few more dollars for a room. There was a bell. One could press the button at the Wah Yuen Apartment and then the bell would ring at the Sing Sing Ballroom. The owner or principal tenant of the two establishments were one and the same person except that the success or of the Sing Sing Ballroom claimed that they only acquired the establishment of the Sing Sing Ballroom. 6. I shall now look at the individual appellants. The 1st appellant was the licencee of the Sing Sing Ballroom and a partner of that establishment. He was the person who introduced a girl to the police officer who acted as a decoy. That girl subsequently negotiated price with the police officer and brought him to the room where act of indecency took place. The 1st appellant had also a key to a safe in one of the rooms in the Wah Yuen Apartment where no less than $12,200 were kept. The sum was admittedly kept to pay wages for the staff in the Sing Sing Ballroom. In addition, there was a bank book for the savings account of the 1st appellant in that same safe. 7. The 2nd appellant was a receptionist and a partner of the Sing Sing Ballroom, and he was present at the time of the raid as was the 1st appellant. The 3rd appellant was an usher. The 4th appellant who was a partner and an usher of the Sing Sing Ballroom were also present at the time of the raid on the 12th of July. The 5th appellant was a cashier in the Sing Sing Ballroom who worked out the accounts of the Sing Sing Ballroom. In his statement he said that: 8. "The charges of the hour were fixed by CHUI Yiu-hung." who is the 1st appellant.
That is the statement of the 5th appellant. 9. The 6th appellant served the customers at Sing Sing were present. As to the 7th to the 11th appellants they were all women who worked in the Sing Sing Ballroom, but they were - all of them, on that material day, found in the Wah Yuen Apartment in various stages of dress or undress. They all made admission in their cautioned statements as to the effect that they masturbated the customers. They talked businesses with the customers at the Sing Sing Ballroom, went to hire a room and did what was expected them to do, namely, acts of indecency. 10. At the time when the raid took place there were no less than 20 girls in the restroom at the back of that Sing Sing Ballroom. In that establishment there was no music although it was named a dancehall or ballroom. There was a dilapidated record-player with very old records. The light was so dark that one could hardly see anything unless it was switched on. There was no table or chair for customers to sit on except car-seats. 11. On these evidence, one could only conclude that the Sing Sing Ballroom was but a bargaining centre where girls would be readily available for customers who wanted to hire prostitutes. The Wah Yuen was just a convenient place to the ballroom to go to do what they wanted to do. There is further evidence that one electricity bill was given for all units in 'A', 'B', 'J', 'G' and 'F', namely, the Wah Yuen Apartment as well as the Sing Sing Ballroom. One can only conclude that there was a substantial connection between the two establishments that they were virtually one. However, the evidence did not end there. At the outset of the proceedings the prosecution applied to the learned magistrate to admit at least two statements under Section 65C of the Criminal Procedure Ordinance. These were the two statements of the 1st appellant and the 2nd appellant. In his statement of findings, the learned magistrate referred to the material part of these two statements. As to the material part of the statements by the 1st appellant, he said:
12. The material part of the statement of the 2nd appellant reads thus: "Q. The customers paid for the hours of bringing the hostesses out. Where did they usually go? 13. Learned counsel for the appellant advanced no less than eight grounds of appeal. The first ground of appeal is that the learned magistrate erred when he decided to disregard the statements which were admitted under S.65C(1) of the Criminal Procedure Ordinance. The second ground is that the learned magistrate erred when he drew inferences after having admitted facts agreed between the Crown and the defence under S.65C(1) of the Criminal Procedure Ordinance and having acquiesced in the trial proceedings upon the basis of those facts. To a certain extent, counsel for the appellant is quite right. But one must look at the statement of findings and the case stated. The learned magistrate said, when referring to the case of R. v. Kwan (1973) HKLR page 335:
Then he went on to say the material part of the 1st appellant's statement to which I had referred. In this case, the prosecution having applied to the learned magistrate that he would seek to have the two statements admitted under S.65C(1) of the Criminal Procedure Ordinance, there can be no doubt that such statements were to be treated as agreed statements of fact. There is no room for any misunderstanding because at the outset of the proceedings the prosecution said so. Indeed in the course of the trial, the learned magistrate said that it was impossible for him to accept the two statements on any other basis. Therefore, it is quite wrong to say that the prosecution can go back on their words. There was no misunderstanding. The learned magistrate must take these statements as agreed facts. However, the learned magistrate in his case stated at page 90, said:
The learned magistrate indeed is not entitled to make any inferences from the statements presented to him. The proposition is put very clearly in the case of R. v. KWAN and Another (1973) HKLR page 335. In that case the learned Justice of Appeal said in these words:
That was a case in which all the evidence tendered before the court were only two agreed statements of fact. No evidence whatsoever was called and the judge, the trial judge, was to give his judgment upon such agreed facts. It is abundantly clear that in such circumstances, the judge is not to draw any inference from the facts that had been agreed. 14. In the other case of R. v. WONG Kwai-ping, again, a statement, an agreed statement of facts was tendered before the learned judge. However, on that occasion, the prosecution, for reasons best known to themselves, tendered witnesses for the prosecution for cross-examination. Fortunately for the appellants in that case all the evidence that was adduced in cross-examination did not further incriminate the appellants before the court of trial. As such, again, it was ruled that the trial judge was not in a position to and should not draw any inference from the agreed statements of fact. I can see no conflict in those two cases. 15. The present case is quite different from the other two cases. I venture to say that it is the first of its kind that has come to light concerning the provisions of S.650 of the Criminal Procedure Ordinance. In the present case, before the learned magistrate, not only two agreed statements of facts in the form of cautioned statements of two appellants were tendered in the court as evidence. Evidence for the prosecution was called and given by no less than 13 witnesses. In view of the situation, the learned magistrate was confronted with two sets of evidence. One set of evidence, as I have already observed, showed clearly that there was a substantial connection between the appellants, the Sing Sing Ballroom and the management of the Sing Sing Ballroom with the Wah Yuen apartment which, by all imagination, could only be described as a brothel. On the other hand, you have two statements accepted by the prosecution that the Wah Yuen had nothing to do with the Sing Sing Ballroom. Was then the learned magistrate precluded from acting on any other evidence except the two statements? In the course of the appeal, I made observations that if these two statements were admitted by the prosecution, it would be open for solicitors representing the defendants in the court below to object to further evidence showing any connection between the two establishments since it was agreed that they had no connection. Any other evidence showing any connection of the two establishments was merely a step backwards to renege from the original admission. However, no objection was taken in the court below. Indeed no objection has been taken in this court. Perhaps, in all fairness to learned counsel for the appellants, had objection been taken in this court, as learned counsel is allowed to do so, the fact that the appellants were legally represented in the court below and that they had not objected to the other oral evidence would have weighed against the appellants in the Court of Appeal. There is ample authority for that. In fact in another context, there was a case reported in the London Times on the 11th of March in 1978 to the effect that an appellant who was legally represented, pleaded one way in ignorance of the law, could go on the Court of Appeal and reverse his plea on the ground of being wrongly advised and yet should be allowed to do so, but such a factor would weigh against the appellant. As it is, it is too late at this stage, to say that I should ignore entirely the other evidence, namely, the oral evidence. The learned magistrate was entitled to do so. 16. The position was that that the learned magistrate was faced with two sets of contradictory evidence. On the one hand, there was the statements to show that there was no connection between the ballroom and the apartment. On the other hand, there was oral evidence to show that there was a strong connection between the ballroom and the apartment and the management of the ballroom with the apartment. When I read the case stated in page 90 of the transcript, the learned magistrate said:
He went on to say that:
I can only suggest that the learned magistrate was giving his opinion and acting on the oral evidence and for this reason he convicted the first four appellants as keepers of brothels. I see nothing wrong in that and I will not interfere with that finding. For this reason, the first two grounds of appeal fail. 17. The third ground of appeal is that there was no evidence to establish that the Sing Sing Ballroom was a brothel. Indeed, taking the Sing Sing Ballroom it could not be said that it was a brothel. If one looked at the evidence as a whole, the activities of both establishments, there is no doubt that the Sing Sing Ballroom was used as a bargaining centre and the apartment house was just a convenient place to carry out the bargains. Then one can see the connection between the two sets of rooms or the two branches of the establishment. One would not have to stretch one's imagination too far to say that the defendants were in fact keeping a brothel. It is not charged that they were keeping the Sing Sing Ballroom as a brothel, but they were keeping a brothel at that address. 18. The fourth ground of appeal was that there was no evidence to establish that the appellants were keepers of a brothel. I have already referred to the evidence in respect of the first four appellants that they were present at the time of the raid, that they carried out the work of introducing girls and serving customers at the Sing Sing Ballroom who eventually would move off to the apartment. I cannot see any more requirement to establish that they were connected with the management and this type of work. 19. The fifth ground of appeal was that there was no evidence to establish that the appellants knew that the hostesses of the Sing Sing Ballroom were prostitutes. That again does not require much imagination. Perhaps I should add that there is evidence in the prosecution case that there were 20 girls in the restroom in which there were lockers. In some of the lockers, there were a fair number of contraceptives and jelly for whatever purpose that it might be employed, and that the girls did not have to go too far but to move over to the apartment. There is evidence of the girls' statements which amounted to admitting practice of prostitution. For these reasons the 3rd to the 5th grounds of appeal also fail. 20. The sixth ground of appeal is that there was no evidence to establish that the Sing Sing Ballroom was a brothel. I have already dealt with this. 21. The seventh ground was that there was no evidence to establish the appellants aided and abetted the keeping of the brothel. All the evidence against the 5th to the 11th appellants was that whereas the 5th appellant is a cashier who worked out the accounts in the ballroom for the girls who were paid to go over to the apartment house. As to the 6th appellant, he served the customers at the ballroom. The 7th to the 11th appellants they said in their own cautioned statements that they went over to the apartment to entertain the customers in such a way that one can have no doubt that they were practising prostitution and nothing else. Obviously, they were aiding and abetting the keeping of a brothel once connection is established between the Sing Sing Ballroom and the Wah Yuen Apartment. 22. It is said finally, that the ground of appeal was that the magistrate erred that when he found that the appellants knew they were aiding and abetting the keeping of a brothel because they were employees of the partnership of the Sing Sing Ballroom. They were found being aiders and abettors not because they were employees. The learned magistrate was entitled from the evidence, and I repeat, the oral evidence alone, that they knew or they ought to have known that they were in fact aiding and abetting. They were just helping out their girls from the Sing Sing Ballroom to go to the apartment to carry out their trade as prostitutes in the Wah Yuen Villa Apartment. Perhaps one or two observations should be made. Learned counsel for the appellants suggested that the word "brothel" was difficult enough for lawyers, and I would even suggest, sometimes, judges. According to his contention there must be at least two females practising prostitution in one room or set of rooms or in one flat with the common intent to practise prostitution. With due respect I beg to differ. The definition of the term "brothel" is defined as to include any premises or part thereof which would constitute a bawldy house at common law and any house, room, vessel or other place occupied, frequented or used by any two or more females for prostitution. I venture to suggest that a brothel may be described as such and no more. There is no question of any requirement for a common intent of two females practising prostitution there. In the present case, as far as the Wah Yuen apartment is concerned, certainly there were more than two females practising prostitution at the time when the police raided the establishment. 23. Perhaps I should also add that in the circumstances of this case, where you have one set of evidence which established that there was no connection between the two establishments in different names, and on the other hand you have another set of evidence, oral evidence, which proved that there was a substantial connection between two sets of establishments in different names, it would be up to the learned magistrate to use his judgment to accept which version of the evidence he chose. Very often in the course of a prosecution, the counsel for the prosecution might adduce evidence some of which are favourable to the accused, some of which are against the accused. In that circumstances, obviously there will be conflict of evidence. It is up to the trial judge to decide which part of the evidence that he will accept and which part of the evidence that he will reject even though all such evidence comes from the prosecution. I can well understand that the present position is exactly the same. This is quite different from the case of Robert KWAN and Another versus the Queen in the 1973 where there was no evidence except the statements of agreed facts. Similarly, it is quite different from WONG Kwai-ping's case where there was no other evidence against the accused. Here we have two sets of evidence. It is up to the learned magistrate to accept which version. He is entitled to derive his inference from the oral evidence as against the agreed statement of facts. For these reasons I will not interfere with the verdict of the learned magistrate and the appeals by all the appellants are accordingly dismissed. Representation: David Wong (Thomas Wang & Co.) for appellant Hawker c.c. for respondent |