HKSAR v. Lin Yiu Man

HCMA000761/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 761 OF 1998

(On Appeal from NKC 3363/98)

____________

____________

Coram: The Honourable Madam Justice Beeson in Court

Date of Hearing: 18 December 1998

Date of Judgment: 18 December 1998

_______________

J U D G M E N T

_______________

1. The Appellant pleaded not guilty to an amended charge of Managing a Vice Establishment, contrary to Section 139(1)(b) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong and was convicted after trial. He appeals against that conviction.

2. The charge resulted from a fairly lengthy undercover operation by the police in respect of a suspected vice establishment. The police made a number of visits in August and October 1997. Although reference was made in evidence to visits on 7th, 9th, 13th and 17th October, the visits of 9th and 17th were not relevant in terms of the charge. The prosecution called eight witnesses, but only the 1st and 2nd witnesses were relevant as witnesses in the case against the Appellant. The modus operandi was the same on each visit; police officers posing as customers would enter the establishment, be introduced to a girl, receive sexual services and then leave.

3. The Appellant did not give evidence and no evidence was called by him. The grounds of appeal were that the Magistrate took into account evidence adduced outside the period of the charge, in deciding who had control over the premises. This evidence related to tapes obtained by the police officers on 17th October, which, at the trial, counsel for the prosecution had argued were admissible evidence to prove Appellant's knowledge that the premises were operated as a vice establishment and also for the question of control.

4. Appellant's counsel argued that the Magistrate had wrongly admitted this evidence and that he had obviously taken it into account when considering the question of control. Having examined the relevant parts of the transcript and the Magistrate's Statement of Findings, I can see no indication that the Magistrate relied on the tapes to determine the question of control. He was certainly entitled to look at them as showing Appellant's knowledge of the fact that the premises were a vice establishment, point contested at trial. On appeal it was conceded that there was no question but that this premises was operated as a vice establishment.

5. The second ground of appeal was that the Prosecution had not established that there was any operational control on the part of the Appellant in relation to the visits on 7th and 13th October. It was conceded that the Appellant had been present at the premises and that he had done various things, but it was submitted that he was merely assisting in the management of a vice establishment.

6. On 7th October, PW1 said that he had been in the resting room prior to going for the massage that he had arranged, when the Appellant introduced himself as "Ah Man". He had a conversation with the Appellant, then went for his massage during which sexual services were provided. His masseuse said to him "As you are introduced by "Man Goh" we know what to do". The Magistrate clearly drew the inference that the reference to "Man Goh" was to the gentleman "Ah Man" who had been identified as the Appellant.

7. PW2 attended the premises on the same date and was asked by the Appellant if he had any familiar girl. When he said no and added that the girl he had on the previous occasion was too old, the Appellant said he would introduce a girl who could provide good service and a pretty girl to boot.

8. At the second visit on 13th October, PW2 complained to the Appellant about the "Northern girl" that he had had on an earlier visit who had caused him pain while she was providing sexual services. He asked whether a "body service" was available and the Appellant said it was. The term "body service" was understood apparently by the officers and by the Appellant to mean a particular type of sexual service. The Appellant said such service was available but "an hour was required to be added".

9. PW1 also received sexual services on that date, in addition to the massage and as PW1 and PW2 approached the cashier on leaving the establishment, the Appellant came up and asked them if the girls had been good or not. He then gave the officers his name card on which he advertised himself as a captain and advised them to telephone ahead of their next visit, so that they did not have to wait and so suitable girls could be provided.

10. The Appellant explained to the officers about a further type of sexual service they enquired about and later he came over and took part in a discussion with the cashier and the two police officers, explaining the way in which various services were costed and what the effect was of paying for a particular service.

11. The Magistrate in considering the question of whether or not the Appellant had "managed" the premises, kept in mind that some of the terms used in discussions did not necessarily have a sexual connotation. He found it proved beyond reasonable doubt that the Appellant had spoken to the two officers; that he had inquired if they had familiar girls; had said he would, or could, arrange good service and pretty girls; suggested that he be contacted in advance of future visits so he could better arrange service and gave explanations as to charges, the practice of adding hours and the like. He was satisfied from the evidence of PW1 and PW2 that on the 7th and 13th October 1997 the Appellant knew there was ongoing provision of sexual services on the premises he was managing.

12. Counsel for the Appellant referred to a number of cases relating to the question of what amounts to management or assisting in the management. They were R. v. Cheong Luen Shing Mag. App. 823/94

13. R. v. Tam Wing Kwong [1988] 2 HKLR 313

14. R. v. Cho Yuen Fai and Tsang Chan-yee Mag. App. No 1356/96

15. They were useful only insofar as they set out the general principles relating to such cases - but clearly each case needs to be looked at on its own facts. "Managing" means exercising operational control and to decide that the Magistrate could rely on a direct admission of such control, and/or examine what was said and acts done by Appellant in relation to the running of the vice establishment.

16. There can be no exhaustive list of what constitutes activity amounting to management. The term "operational control" is a fairly wide one. It is difficult to lay down general rules because the size, the nature and the modus operandi of vice establishments is very disparate.

17. Mr. Cheng submitted that Appellant's role was that of somebody assisting in the management. However, from the overall description of the Appellant's behaviour on 7th and 13th, it appears that he was behaving not as an usher, or as someone peripheral to the management, but as a person who was orchestrating, or controlling, the administrative running of the operation. He was negotiating sales, advertising and directing the movement of girls, although his direction may have stopped short of his actually leading them into the room. It appeared that the mention of his name was sufficient for the girls to offer sexual services as directed, and Appellant also considered that his position was such that his name could be invoked on future occasions.

18. In some cases relating to the question of whether or not somebody is operating a vice establishment, there is often a clear admission either at the time of the arrest, or later at the police station, that a particular person was the manager. There was no such admission in this case. It was also submitted that there was a main manager and a supervisor and that for this reason, the Appellant's role could not have been that of a manager but one who was only assisting in the management.

19. There is nothing in the cases to which my attention was drawn, or of which I have knowledge, which indicates that there can be only one manager. It appears that at the times and on the dates at which these officers received sexual services, the person who was managing was the Appellant, rather than anybody else on the premises. I have considered the transcript of the trial and Magistrate's Statement of Findings. I consider that there was ample evidence on which the Magistrate could reach the conclusion that Appellant was managing the vice establishment.

20. This appeal against conviction is dismissed.

Representation:

Mr. Vincent WONG, S.G.C., for D.P.P.

Mr. CHENG Huan, S.C. and Mr. Joe LUK, instructed by Messrs. Haldanes for Appellant.