Poon Chun-yuen v. The Queen

Case No.CACC 193/1981

Court

Court of Appeal

Date23 Jun 1981

Judge—

Case Document

100%

CACC000193/1981

Massage parlour. Breach of licence condition held to be an offence of strict liability.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL No. 193 of 1981.

-----------------

BETWEEN
	POON CHUN-YUEN	Appellant
	and
	THE QUEEN	Respondent

-----------------

Coram: Bewley, J.

Date of Judgment: 23rd June, 1981.

-----------------

JUDGMENT

-----------------

1. The appellant was convicted of "giving massage after 8 p.m.", contrary to Reg. 30(b) of the Miscellaneous Licences Ordinance, which is in these terms:-

"Every person holding a licence under this Part shall observe the following conditions, and such special conditions as the licensing authority may in his dis-cretion impose which shall be endorsed on the licence -

(b)

no massage or other treatment shall be given except between the hours of 8 a.m. and 8 p.m."

The particulars of offence allege -

"Poon Chun-yuen, you are charged that on the 5th day of May, 1980, at No. 9-13, O'Brien Road, 2nd floor, the Salem De Sauna, in this Colony, you being the person holding a massage establishment licence, did fail to observe a condition endorsed on the said licence, namely giving massage except between the hours of 8 a.m. and 8 p.m."

2. No point is taken regarding the inelegant wording of the particulars. Had I myself been trying the case, I should, I think, have amended, by substituting the words 'that no massage shall be given' for 'giving massage'. The statement of offence is also a misnomer, since it is not alleged that it was the appellant who gave the massage. However, nothing turns on this.

3. The point at issue is whether this regulation creates an offence of strict liability, or whether the prosecution must prove mens rea on the part of the licensee, assuming he is absent from the premises at the relevant time.

4. The defence admitted that massage was being carried out when the police raided the premises at 10.00 p.m. One of the persons present told the police that he was the night shift manager. It was also admitted by the defence that the appellant was the licensee. However, he was not present at the time of the police raid and there is no evidence that he permitted the forbidden activity to take place.

5. There is no question of vicarious liability under section 8 of the Ordinance, which provides -

"Whenever any person to whom any licence or permit or authority has been issued or granted under this Ordinance would be liable under the provisions of this Ordinance or of any regulations made thereunder to any punishment, penalty or forfeiture for any act, omission, neglect or default, he shall be liable to the same punishment, penalty or forfeiture for every similar act, omission, neglect or default of any agent or servant employed by him in the course of his business, and every such agent or servant shall also be liable to every punishment, penalty or forfeiture prescribed for such acts, omissions, neglects or defaults contrary to the provisions of this Ordinance as fully and effectually as if he had been the person to whom the licence or permit or authority had been issued or granted."

6. The admission by the night shift manager, not being evidence against the appellant, there is no evidence that the manager was the latter's servant or agent. The case thus hangs or falls on the liability of the appellant qua licensee.

7. The leading case on the subject is Sweet v. Parsley.⁽¹⁾ At page 149 Lord Reid said:

"Our first duty is to consider the words of the Act: if they show a clear intention to create an absolute offence that is an end of the matter. But such cases are very rare. Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in one form or another. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such cases there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea."

And again:

"It is also firmly established that the fact that other sections of the Act expressly require mens rea, for example because they contain the word 'knowingly', is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute offence. In the absence of a clear indication in the Act that an offence is intended to be an absolute offence, it is necessary to go outside the Act and examine all relevant circumstances in order to establish that this must have been the intention of Parliament. I say 'must have been' because it is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted."

8. The following dictum by Lord Evershed, being the ratio decidendi of Lim Chin-aik V. R.⁽²⁾, a Privy Council case, is also relevant:-

	"Where the subject-matter of the statute is the regulation for the public welfare of a particular activity - statutes regulating the sale of food and drink are to be found among the earliest examples - it can be and frequently has been inferred that the legislature intended that such activities should be carried out under conditions of strict liability. The presumption is that the statute or statutory instrument can be effectively enforced only if those in charge of the relevant activities are made responsible for seeing that they are complied with. When such a presumption is to be inferred, it displaces the ordinary presumption of mens rea. Thus sellers of meat may be made responsible for seeing that the meat is fit for human consumption and it is no answer for them to say that they were not aware that it was polluted. If that were a satisfactory answer, then as Kennedy L.J. pointed out in Hobbs v. Winchester Corporation,⁽³⁾ the distribution of bad meat (and its far-reaching consequences) would not be effectively prevented. So a publican may be made responsible for observing the condition of his customers : Cundy v. Le Cocq.⁽⁴⁾
	But it is not enough in their Lordships' opinion merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended. It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. That means that there must be something he can do, directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to inference or control, which will promote the observance of the regulations. Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim."

9. The situation in that case was very different to the present one. Lim would have had the onerous, and perhaps impossible, duty of checking each day with the Immigration Department to find out if he was permitted to remain in Singapore.

10. The words of the regulation do not indicate, one way or the other, the intention of the legislature. It is necessary, therefore, to look outside the Ordinance at all the circumstances, in order to ascertain that intention.

11. Three recent Hong Kong decisions have been cited. The first is Lee Fu Yuen & anor v. R.⁽⁵⁾ The appellants were convicted of offences under Reg. 63(1) of the same regulations, which provides: "No person under the age of 18 years shall be employed in the premises" (Public dance hall). Li J. held that, in determining whether any mental element is required in a statutory offence, the legislation as a whole must be construed and various factors taken into consideration. His conclusion was that Reg. 63(1) did not create an absolute offence.

12. The next case was Lo Shan v. R.⁽⁶⁾ A massage establishment was raided by the police. The appellant licensee was not on the premises, but his co-defendant admitted to the police that he was the manager. The appellant was summonsed under the same Reg. 30(b), but it was alleged against him that, 'being the licensee, he did provide massage'.

13. One ground of appeal was that the offence required mens rea, but, strangely, this point was not argued. The case was decided solely on the basis of vicarious liability. Yang J. held that the magistrate erred in relying on the manager's admission as evidence against the appellant and that there was, therefore, no evidence that could make him vicariously liable.

14. Kwong Hung Fai v. R.⁽⁷⁾ was heard 7 months later and involved the same counsel and magistrate, but a different judge. The facts were also similar. The appellant was charged, also contrary to Reg. 30(b), with 'providing massage' outside the stipulated hours and the particulars so alleged.

15. This time, counsel for the appellant submitted that neither s.8 of the Ordinance, nor the offence itself, gave rise to strict liability. The magistrate had convicted on the basis that the licensee was vicariously liable under s.8, but counsel again argued that there was no evidence that the manager was an authorized agent and he should, therefore, have been acquitted.

16. Zimmern J. found it unnecessary to deal with the matter on the merits, since he took the point that the charge was wrong. The appellant should have been charged with failing to observe a condition of his licence, instead of with providing massage. The learned judge refused to amend and quashed the conviction. However, in doing so, he let fall the following -

"As I read regulations 17 & 30, they impose an obligation on a licensee to see to it that no massage or treatment be given outside the permitted hours and, if given, it does not in the least matter whether the licensee knew or not, for he would have failed to observe a condition of his licence and committed an offence thereby."

17. There is a factor common to the 3 Hong Kong cases cited: they all alleged a positive act. In the case of Kwok and Lo Shan it was the 'providing of massage'. In Lee Fu Yuen it was the act of employing. Li J, in the latter case, seems to have been influenced strongly by a mistake of fact on the part of the appellant. It was clearly reasonable to have accepted the identity cards proffered by the girls; there was no way of finding out that they were false. A court, in these circumstances, will be slow to hold that mens rea is not required.

18. Such a consideration does not apply in this case. All the appellant had to do, in order to observe the terms of his licence, was to ensure that his premises were not open for business after 8 p.m. If that were done, there could be no question of massage being given. No positive act was required.

19. Lee Fu Yuen, in particular, may be distinguished for the reasons given. So far as Lo Shan is concerned, Yang J. might have come to a different conclusion had his attention been drawn to the fact that the offence was not 'providing' anything and had he been prepared to amend. Zimmern J., in Kwok, would certainly have done so, in the light of his obiter dicta.

20. In looking to see if there is an intention that the offence should be an absolute one, two factors loom large. Is the mischief aimed at a grave social evil and can the licensee observe the regulations?

21. Counsel for the Crown does not pretend that the massaging of men by women is a grave social evil. He does submit, and I think rightly, that one must look beyond the facts of this particular case. The regulation is aimed at the control of premises, in which massage, if it indeed takes place, is carried out in the most euphemistic sense.

22. Nor do I consider that any difficulty, or hardship, confronts the licensee of a massage parlour that is concerned not to break the law. All he has to do is to give instructions that the premises are to close at 8 p.m. If his orders are not obeyed, he can take appropriate action. He does not permit or allow anything.

23. The other important consideration is the question of penalty. Mr. Corrigan submits that the licensing authority has ample powers to terminate the licence independently of conviction. This is true. If the authority is satisfied that a condition of the licence has been breached, it has peremptory powers.

24. Is it, therefore, necessary, in the public interest, that strict liability should put the licensee at risk of both fine and imprisonment? I must say I can envisage cases in which a heavy penalty would be entirely appropriate for breach of this regulation, quite apart from the probable loss of licence. There is also the question of deterrence.

25. In my judgment Lord Evershed's criteria are fulfilled. I conclude, having regard to the nature of the offence, the public interest and the relative ease with which the licensee is able to comply with the regulation, that the presumption that mens rea is required is rebutted and that the legislature intended that the offence should be one of strict liability.

26. Appeal dismissed.

	(E. de B. Bewley)
	Judge of the High Court

Representation:

Mr. Corrigan (Fairbairn & Kwok) for appellant

Mr. Mason-Parker, C.C., for respondent

(1)

(2) (1963) A.C. 160.

(3) [1910] 2 K.B. 471; 26 T.L.R. 557, C.A.

(4) L.R. 13 Q.B.D. 207.

(5) Crim. App. 825, 862 and 863/78

(6) Crim. App. 252/80

(7) Crim. App. 655/80