Yip Bun Keung v. HKSAR

FAMC000003/2001

FAMC No. 3 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 3 OF 2001 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCMA No. 635 of 2000)

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Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 9 March 2001

Date of Determination: 9 March 2001

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D E T E R M I N A T I O N

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Mr Justice Chan PJ:

1. This is an application for extension of time to apply for leave to appeal to the Court of Final Appeal.

2. The applicant was convicted after trial by a magistrate of an offence contrary to s.46(1) of the Dutiable Commodities Ordinance, Cap. 109, that is, being the holder of a liquor licence, contravened a licensing condition, namely clause 7, by permitting the premises in respect of which the licence was granted to be used for an immoral purpose.

3. The applicant was the holder of a liquor licence issued in respect of Club Venus in Lockhart Road, Wan Chai. He was also the manager there. On the day in question, two undercover police officers pretending to be patrons visited the Club. They were served by 2 female staff who then engaged in sexual activities with them in the premises. The ladies later went out with them to have sex in nearby hotels and were paid. The applicant was charged with the present offence while 3 female staff were charged with soliciting for immoral purpose. Clause 7 of the licensing conditions provided that he shall not permit any person to occupy or use any portion of the premises for any immoral purpose. Clause 4 provided that he shall personally supervise the premises. At the end of the prosecution case, his counsel made a submission of no case to answer. This was rejected. He then gave evidence in which he accepted that he was present in the premises; that his job was to supervise everything in the bar including the girls, to see if they were doing anything different from what they were supposed to do; and that he was on duty in the bar area and constantly walked around checking the staff. He was convicted after the magistrate amended the charge to include a reference to clause 7 in the particulars of the charge. The female staff were also convicted. The applicant's appeal to the Court of First Instance was dismissed.

4. Counsel raises two questions which he submits involve points of law of great and general importance.

5. The first question arises from what the magistrate said at p.98 of the transcript which for some reason he did not specifically repeat in his Statement of Findings except by way of general incorporation. He said to the effect that he would also find the applicant vicariously liable under s.46A(1) of the Ordinance since the female staff had contravened the licensing condition and that he had failed to make out a defence under s.46A(2).

6. Counsel's argument amounts to this. To invoke s.46A(1), a servant must have been guilty of an offence before his master can be vicariously liable for the same offence. Since the female staff could not have been guilty of an offence under s.46(1) as she was not a licence holder, the applicant could not have been found guilty of an offence under s.46A(1).

7. While this argument is interesting, it is purely academic in the present case. The magistrate's reference to s.46A was, in our view, entirely gratuitous since there was ample evidence to support the irresistible inference, which the magistrate had drawn, that the applicant had actual knowledge that there were sexual activities inside the premises and that he permitted this to happen in breach of the licensing condition. This was the main, if not the sole, basis for the conviction.

8. This can be seen from the transcript when he delivered his verdict at the end of the trial:

"I further find that particularly in the context of the very small size of these premises and D4's (the applicant's) own account of how closely he watched the situation in the bar that D4 must have known about these activities.

I am sure D4 knew that sexual activity was taking place. He permitted it to continue. Such an activity was prohibited by clause 7 of the licence and that condition was lawfully imposed under the Dutiable Commodities Ordinance and the offence was thereby committed."

This also appears at para. 26 of his Statement of Findings.

9. In these circumstances, it would not, in our view, be appropriate to certify this question for the consideration of the Court of Final Appeal.

10. As regards the second question which is sought to be certified, it is quite clear that this is another attempt to challenge the magistrate's ruling that there was a case to answer at the end of the prosecution case. It is suggested that at the end of the prosecution case, that is before the applicant gave evidence admitting that he was in the premises on the day in question, there was no evidence that he was present in the Club and hence there was no case for him to answer. The magistrate was of course not obliged to give any reason for his ruling. Without deciding on the point whether the present offence is one of strict liability or not, we would point out that the applicant was, according to clause 4 of the licensing conditions, also under a personal duty to supervise the premises. In the absence of any suggestion to the contrary, it would still be open to the magistrate to infer from the evidence that there was a prima facie case at the end of the prosecution case that the applicant was present in the premises, that he must have known what was happening and that he had permitted such activity to take place inside the premises. The magistrate was entitled to find there was a case to answer. This issue had also been considered and properly rejected by the Judge hearing the appeal.

11. In any event, the second question is, in our view, case specific and does not involve any point of law of great and general importance.

12. For the above reasons, the application for extension of time to apply for leave to appeal is refused.

Representation:

Mr Peter Duncan (instructed by Messrs K.C. Ho & Fong) for the applicant

Mr P.S. Chapman and Miss Vinci Lam (of the Department of Justice) for the respondent