Chan Man and Others v. The Queen

CACC000026/1976

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Coram: Huggins, J.A.

Date of Judgment: 24th February 1976.

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JUDGMENT

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1. Eight Defendants were charged under s.3 of the Indecent Exhibitions Ordinance with exposing to the public view a floor show of an indecent nature. Three of them were further charged under s.8 of the Places of Public Entertainment Ordinance with carrying on a public entertainment without a permit granted by the Commissioner of Police. The first Defendant was acquitted on both charges and there were acquittals in respect of each of the Defendants charged with the second charge of carrying on the public entertainment without a permit. All the Defendants except the first were convicted on the first charge. The present appeal is by them against their convictions.

2. I shall deal first with the fourth of the grounds which has been argued, namely that of inconsistent verdicts. The facts were that a number of police officers went to a place on the 7th floor of No. 338 Hennessy Road, Wanchai, where there was what is described as an "association". In a very large room, exceeding 100 feet in length, there were many tables, there was a stage, there was a bar, drinks were being served, it would appear that light snacks were available, an orchestra was playing, there were singers and there was a floor show, which came on, according to the advertisements, six times a night, the show lasting about 15 minutes on each occasion. The floor show was alleged to be - and the magistrate so found - of an indecent nature. Counsel has not sought to challenge that finding on the appeal, and with respect I think rightly so.

3. Nevertheless, the question is whether these people were properly convicted. The Appellants were, as to two of them, the girls who were actually performing this "exhibition". (Counsel preferred not to rely on the ground of appeal which contended that this floor show was not an "exhibition" within the meaning of the Ordinance). As to the rest they were all persons who appeared to the police to be taking some part in the conduct (and I use this word advisedly) of the "business" of the association. I distinguish that from conducting "the floor show", and it is in respect of the floor show that this charge is laid. One of the Defendants was the cashier, one of them was the receptionist and two of them were described as "captains", who appeared to be exercising some form of control over those who were serving refreshments. There was no direct evidence that any one of these persons was controlling the floor show.

4. The learned magistrate, as I say, acquitted on the second charge the three who were charged thereunder and he did so because he thought that this was a club and that the Ordinance under which that charge was laid was not designed to control clubs: it was to control public entertainments. That would appear to suggest that he was satisfied that this association was a genuine club and that the public as such were not entitled to go in. The evidence was that those who went were required to go through some (albeit minimal) formalities. Although one of the officers managed to walk right through into the hall without being stopped, nevertheless, when he came back and said "Do I need to be a member?", he was told "Yes, you do have to be a member. You have to pay $10". When he paid his $10 he was given a membership card. On that membership card was indicated the date of expiry of his membership. It is true that there were few rules of this club, but there were rules set out on the back of the card and it does appear to have been essential that one be a member before being allowed to go into this club with the knowledge of the management. On the second occasion when this particular officer went he did not have to pay any further fee. That indicates that he had membership. This being so it seems to me that it was inconsistent thereafter to say that the floor show, which could be seen only by persons who had been admitted into the hall, was exposed to public view. The learned magistrate relied upon the decision in LAI Chun-wa v. Reg. Crim. App. No. 687 of 1973 (unreported). With respect to the learned judge I have had some difficulty in understanding exactly what was the basis of that decision, but I think it was that the society which was concerned there was run by a corporation and, although I call it a "society", the learned judge was of opinion that it was not a real society at all: it was a mere sham. I express no opinion upon that, although it was submitted to me that I might have to decide whether I was prepared to follow that decision. I do not think it is necessary to express any opinion. In the present case it is quite impossible for me to say that this club was a sham. Therefore, I am satisfied on the findings of the magistrate that there was no exposure to public view and these verdicts are to my mind manifestly inconsistent.

5. Counsel for the Crown rightly concedes that if the convictions on the first charge in respect of those three who were acquitted on the second charge must go so must the convictions of the other Defendants who were convicted on the first charge. That applies to all the Appellants - not merely to those who were convicted on the basis of aiding and abetting the management of the club but also the two girls.

6. Having come to that conclusion it is not necessary for me to express any view on the other ground of appeal, which concerns only the five persons who were assisting in the carrying on of the business of the association. I say only this, that I myself have considerable doubts whether it can properly be said that they were assisting in the management of the floor show and were therefore Guilty as aiders and abetters. It seems to me there is a very great difference between the man who has the control over the floor show and can say whether it shall go on or not, and what form it shall take, and the person who sells tickets at the door or chocolates in the aisles. This question - should it ever arise again - would be fit for the consideration of a higher court.

7. As it is, these appeals must be allowed, the convictions quashed and the sentences set aside. The fines must be repaid.

24th February 1976.

Representation: