R. v. Li Yuk

HCMA000748/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 748 OF 1996

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Coram: Hon Gall, J. in Court

Date of hearing: 28 February 1997

Date of judgment: 28 February 1997

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J U D G M E N T

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1. The appellant was convicted of one charge of managing a vice establishment on 28th May 1996.

2. The evidence was that two police officers attended premises, which the appellant admitted that he managed, and received services of a sexual nature. The evidence of the two officers who attended the premises initially was in the main in agreement. Where it differed was that the first prosecution witness testified to have specifically been offered sexual services of a hostess before she was brought to his room and was asked whether he had any familiar hostess. The second prosecution witness was not specifically offered sexual services.

3. In his reasons for conviction, the magistrate said, in reciting the evidence :

"Two people entered the premises together and were separately offered sexual services including sexual intercourse."

And further,

"It was highly apposite in my view that nothing other than sexual services were offered at the premises to the undercover officers."

The second quotation is, of course, equivocal, however, the first would seem to indicate that the magistrate was of the view at the time of the making his findings that each officer had been offered sexual services.

4. Mr Callaghan concedes that in the absence of that mistaken view by the magistrate, there is ample evidence for the conviction but by inference points out to me that there is no room for me to exercise that the appeal should not be allowed on the basis of a proviso. What I must look at therefore is whether the magistrate in his finding has arrived sufficiently at a conclusion that the premises were wholly or mainly kept as a vice establishment.

5. The magistrate did not only rely upon the evidence cited concerning the offer of sexual services, he said he considered all the evidence in this case when considering whether the premises were wholly or mainly used. There was evidence before him as to the layout of the premises, books of account, the large number of condoms found on the premises, in particular one found in each of the rooms to which the first and second prosecution witnesses were taken.

6. Mr Liu argues that an offer of sexual services need not be a specific and explicit verbal offer. He says that in this case, in respect of the second prosecution witness, he was taken to a room where he was told a hostess would be brought, he was asked to take a shower, or a bath, and then wrapped himself in nothing but a towel when the appellant came to him and brought the hostess to him while he was in that condition in a room where a condom had been provided from what was clearly a store of such items at the front reception of the premises which was manned by the appellant. Mr Liu says that in all those circumstances this could amount to nothing more or less than an offer of sexual services to the second prosecution witness.

7. In all the circumstances, I would agree with that proposition and I am satisfied that the offer of sexual services could include either a specific verbal offer or an offer by conduct. In all the other elements of the offence, the learned magistrate has probably directed himself and come to a correct conclusion. The appeal against conviction is dismissed.

Representation:

Mr Y.M. Liu, S.C.C., for Crown

Mr Peter Callaghan, inst'd by M/s Ivan Tang & Co., for Appellant