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The Queen v. Kwok Ka Leung and Others

Case No.CACC 198/1983
Court
Court of Appeal
Date13 May 1983
Judge—
Case Document
100%

CACC000198/1983

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 198 OF 1983

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BETWEEN

THE QUEEN

and
KWOK KA LEUNG
LAU YAN WING
CHEUNG WING
CHOW KIM KWAN
LAU CHAI TUNG
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Coram: Hon. Barnes, J. in Court.

Date: 13th May, 1983

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JUDGMENT

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1. The Appellants were charged in the same charge sheet as follows:-

"CHARGE:- MANAGING A VICE-ESTABLISHMENT (D1 only)

Statement of offence:- Contrary to Section 139(b) of the Crime Ordinance, Cap. 200, Laws of Hong Kong.

Particulars of offence:- KWOK Ka-leung, you are charged that on the 7th day of November, 1982, at the 2nd floor, NO. 655, Nathan Road, 'Big Wig Night Club', Kowloon, in this Colony, you did manage the said premises as a Vice Establishment.

CHARGE:- ASSISTING IN THE MANAGEMENT OF A VICE ESTABLISHMENT(D2-D5 jointly charge)

Statement of offence:- Contrary to Section 139(b) of the Crime Ordinance, Cap. 200, Laws of Hong Kong.

Particulars of offence:- LAU Yan-wing, CHEUNG Wing, CHOW Kim-kwan and LAU Chai-tung, you are charged that on the 7th day of November, 1982, at the 2nd floor, No. 655, Nathan Road, 'Big Wig Night Club', Kowloon, in this Colony, you did assist Chinese male KWOK Ka-leung in the management of the said premises as a Vice Establishment."

2. The minute of conviction records the particulars of the offence by following, in each case, the wording in the charge sheet.

3. Section 139 of the Crimes Ordinance provides as follows:-

"139.     A person who on any occasion -

(a) .............; or

(b) manages or assists in the management;  of any premises ... kept as a vice establishment

shall be guilty of an offence ......."

4. In the particulars of the offence given in respect of each charge and each conviction the "kept" element of the offence is missing.

5. In Wong Chi-hung & ors. v. The Queen(l), McMullin, V.-P., delivering the judgment of the court on this question said (at p. 14):-

"It is the element of repeated user of the premises which makes the offence of its nature a continuing one. This is implicit in the words "keeps" and "kept" ............:... Some degree of persistence in user must be shown before the character of the premises is established."

Earlier, at p. 11, he said:-

"The offence is one of a continuing nature. It does require the showing of something in the nature of persistent or habitual user of premises for any of [the] forbidden purposes ........... If that is not established, the charge fails." (Underlining added ).

The "kept" element is therefore a vital element in alleging the offence. Failing to allege means, in this case, failure to allege an offence known to law. The Appellants could, therefore, not be properly convicted unless the charges were amended so as to allege that element.] An amendment of that nature would have obliged the magistrate to follow the procedure laid down by section 27 of the Magistrates Ordinance. As convictions have been quashed where magistrates have amended a charge but failed to follow that procedure it seems to me that the "conviction" must be quashed where a necessary amendment was not made at all.

6. I therefore allow the appeal in respect of each Appellant, quash the conviction in each case and order that any sum paid into court by any Appellant in compliance with any order consequent upon conviction be refunded.

E.C. BARNES
JUDGE OF THE HIGH COURT

(1)    Cr. App. No. 285/82

Representation:

Mr. James O'Grady, Crown Counsel, for the Crown.

Mr. Cheng Huan (M/s. Laurence Pang & Co.) for all Appellants.