Wong Chi-hung and Others v. The Queen

CACC000285/1982

Crimes Ordinance Section 139 (a) keeping and (b) managing a vice establishment - These are continuing offences notwithstanding that the words "on any occasion" appear in the opening clause of the section - Those words do not render the section incapable of construction - Charge under the section not had for duplicity in describing the offence as having occurred between two specified dates.

Per Li, J.A., (dissenting on the latter point only) the section does not create a continuing offence and the charges therefore show duplicity but in the absence of timely application to quash for that defect no miscarriage of justice had occurred - Appeals dismissed

BETWEEN

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Coram: McMullin, V.-P., Li & Yang, JJ.A.

Date: 15 June 1982

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JUDGMENT

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McMullin, V.-P. :

1. I am authorized by Yang, J.A., to say that he is in agreement with the judgment which I am about to deliver.

2. The appellants constitute two out of an original number of eight defendants who were charged with various offences arising out of activities carried on at the mezzanine floor of premises situated at 13-15 Jordan Road, Kowloon and known as the Kam Sze Entertainment Association Limited, One of the defendants was discharged at the outset of the trial on no evidence being offered in his case. Another was acquitted after trial. Two others who were convicted under section 144(a) of the Crimes Ordinance, Cap. 200 of permitting a vice establishment to be kept on the mezzanine floor of 13 15 Jordan Road, premises of which they were tenants. They received fines and have not appealed against conviction or sentence. The remaining four defendants are appellants. Their convictions and sentences all arise in various ways out of their connection with the Kam Sze and the running of it, as it is alleged, as a vice establishment.

3. The first appellant, WONG Chi-hung, was convicted under section 139(b) of Cap. 200 of managing a vice establishment and he received a sentence of 12 months' imprisonment. He was ordered to pay costs of $5,000. He appeals against conviction and sentence.

4. The second appellant, TANG Siu-hing, was convicted under section 139(a), Cap. 200 of keeping a vice establishment. He was sentenced to 18 months' imprisonment and ordered to pay costs of $5,000. He appeals also against conviction and sentence.

5. The two remaining appellants, KWUN Yin and LAI Kwok-wah, were convicted of permitting the premises to be used as a vice establishment, they being tenants therein. They appeal only against their sentences which, in the case of each of them, include a $20,000 fine and 6 months' imprisonment suspended for 2 years together with an order to pay $5,000 costs.

6. The facts, concerning which there is no dispute, are as follows. The fifth to eighth defendants were shareholders and directors in a company known as Canuay Investment Limited. This company owned the Goodwill Restaurant on the ground floor of No. 13-15 Jordan Road, Kowloon. They were all, to varying degrees, involved in the running of that restaurant. Business commenced in June 1978 with three of them investing $50,000 each and the fourth investing $100,000.

7. A legal wrangle with their landlord was settled upon terms which required the payment of very large damages by them to him. In addition, they agreed to take from him the mezzanine floor as well as the ground floor at an additional monthly rent of $25,000.

8. This financial exigency caused the founding of the Kam Sze Entertainment Club. Two new partners were enlisted to further this enterprise. One of them was the second appellant TANG Siu-hing who contributed a sum of $120,000 thereto. He was also appointed to run the club as licensee thereof and was responsible for the license for the premises and the employment of the cashier. He carried out a general supervisory role visiting the club 2 to 3 times a month.

9. The first appellant WONG Chi-hung was charged with the day to day management of the club. He put in about 56 hours per week working in the club and was the joint holder of the club's bank account.

10. A series of police visits to the premises in the course of which plainclothes officers presented themselves as ordinary customers disclosed the layout of the club and the nature of the entertainment offered therein. This evidence has not been disputed, A large number of young women were employed there, their duties being to attend upon customers in a large almost dark room where a variety of indecencies would be encouraged and permitted for the payment of money. Extra payment would secure the services of the girl to leave the premises with the customer and go to a nearby rooming house where sexual intercourse could take place. Apart from the supply of soft drinks, no other form of entertainment appears to have been offered upon the premises at any time.

11. This evidence was handled with great care by the who, in a succinct and very helpful series of findings, concluded that the premises were being kept as a vice establishment. He convicted the first appellant as the manager and the second appellant as the keeper of the premises. Although both of the appellants gave evidence, it is not necessary to refer to that in any detail.  Despite the nature of their admitted connection with the premises, they each sought to persuade the court that they were unaware that the premises were being used for immoral purposes.  This defence was rejected by the trial judge. The only substantial points upon the appeal are not concerned, to any material extent, with controverting the District Judge's findings of fact, they turn upon the interpretation of the relevant provisions of the Ordinance.

12. The Crimes Ordinance 1971 (Cap. 200) is a consolidating enactment drawing its substance from a wide variety of earlier Acts and Ordinances sometimes adopting and sometimes adapting the language used in the older legislation. The present Part XII of the Ordinance was added in 1978 (Ordinance 1 of 1978) and it draws mainly on the English legislation relating to sexual and related offences. The inspiration for Section 139 is, according to the sidenote, Section 33 of the Sexual Offences Act 1956. That, however, is a very short and simple provision making it an offence to keep, manage, act or assist in the management of a brothel. The draftsman here, however, has proposed the term "vice establishment" no doubt so as not to restrict the cover of the law to premises where acts of illicit sexual intercourse take place. Under Section 117(3) of the Ordinance it is necessary to prove that premises are used wholly or mainly by 2 or more women for purposes of prostitution before such premises qualify for the description "vice establishment". It is conceded in the present case that the activities of the several women who dealt with the police officers amounted to prostitution. It would seem to follow, although I do not think it was expressly conceded, that the evidence of the police officers showed beyond any doubt that the Kam Sze Club was a vice establishment. Certainly that was not disputed. The points taken by Mr, Mayne on this appeal are not concerned with criticisms of the evidence; counsel seeks to overturn the conviction by a radical assault upon the legislation itself and the charges taken under it.

13. The first point and the one of widest import is a point which has never been taken either at first instance or upon appeal in any previous case under section 139 although there have been many convictions under that section in the four years of its existence, many of which were considered subsequently by the Court of Appeal. Section 139 reads as follows:

14. While conceding that courts are slow to declare legislation impotent when it has a clear and important purpose, Mr. Mayne contends that by using the formula "on any occasion" in the opening words of the section, the draftsman has so unsettled the plain meaning of the following paragraphs (a) and (b) that the section as a whole is thrown into a confusion of ambiguity and self-contradiction too extreme to be relieved by any legitimate degree of judicial interpretation. This is so, counsel says, because the notion of keeping an establishment, on the authority of many decisions relating to similar offences in all the common law jurisdictions, involves continuity, to prove which it must be shown that the proscribed activities were seen to be in operation on the premises on more than a single occasion. Authority is on his side thus far. (See, for example, Brady and Ram⁽¹⁾ followed by Silke, J., in CHAN Man-shing & ors.⁽²⁾ where the charges related to the keeping of disorderly houses contrary to Common Law). But then Mr. mayne asks us to advance with him to the conclusion that by prefacing the description of the forbidden acts in paragraphs (a) and (b) with the words on "on any occasion'' the draftsman has stripped the section of any clear meaning and stultified the intention of the Legislature which, he argues, has not been similarly embarrassed in the many other sections in Part XII where offences involving some element of continuity in commission are set up and are not similarly prefaced. Examples of such offences may be found in sections 130, 134, 137 and 138.

15. With all due deference to the industry and ingenuity of counsel, and to an argument which was confidently and plausibly advanced, I cannot see that there is any real substance in this point. Mr. Plowman, for the Crown, was clearly right to maintain that the Legislature had adopted the formula ''on any occasion" as precisely expressing its intention which patently was to obviate the necessity of proving habitual user by the individual of premises for the proscribed purposes. There is nothing self-contradictory in the wording of the section nor anything particularly doubtful or mysterious in its intention. As Mr. Plowman rightly perceives, there are two distinct elements in the offence. What the Crown must show in order to bring home a charge under section 139(a) or (b) is, firstly, that the premises were being kept in that manner and, secondly, that the defendant was in the position of keeper, (para. (a)), in relation thereto or, (para. (b)), that he was seen to be managing, or assisting in managing or otherwise in charge or control of the premises.   The first of those elements requires evidence sufficient to show a pattern of main user which will usually involve some degree of persistence in time beyond what would be supplied by evidence of a single transaction; the second need not.

16. This double aspect of the probanda under section 139 is reflected in the language used by Sir Denys Roberts, C.J., in TAM kim-leung & ors.⁽³⁾ where the several accused had been variously charged under paragraphs (a) and (b) of section 139. In relation to the keeping charge, he said:

"There can be no doubt that the premises were being operated as a vice establishment. In my view 'keeping' means maintaining the premises, knowing that they are being used as a vice establishment and having some measure of control over their use as such, though this control may be short of active management on a continuous basis."

17. The first of those elements, no doubt, will usually be proved by evidence which results from surveillance of the premises over a relatively protracted period.  But it might also, in a given case, be established by proof of what has been observed upon a single occasion where the circumstances are such as to yield no other conclusion than that conduct of the forbidden kind was not only then going on but (from the layout of the premises, documents, registers, books of account and the like) that the premises had been so used, whether by the accused or some other person, for a considerable period prior to the police raid or whatever intrusion had brought the evidence to light.

18. Once that has been proved the commission of the offence will be brought home to the individual charged by showing, in addition, that "on any occasion" his conduct had fulfilled the description of keeper, manager, controller etc, In such establishments (though that was not the case here) there may well be a number of individuals associated with the premises and the activities therein for brief periods or, it may be, on one day only. It was clearly the Legislature's intention that the control and elimination of such undesirable establishments should not be impeded by difficulties which might still he put in the way of proving such common law offences as the keeping of a brothel or a disorderly house.

19. Liu, J., in CHAN Man v The Queen⁽⁴⁾ was concerned with just such an offence. In quashing the conviction of a man who had been charged with keeping a disorderly house on a single date, he did so on the form of the indictment which he held to be bad because the particulars so charged did not adequately reflect the notion of continuity inherent in such a charge.  I am not, with respect, convinced that that result must necessarily follow given what I have described as the double nature of the proof required of the Crown in this sort of case. Certainly, the objection would not have been valid if the defendant had been charged under section 139. It may be noted that Liu, J., while distinguishing the case from the one before him, did not question the correctness of the decision in R. v. Harrison⁽⁵⁾ where it was held that the circumstances attendant upon one incident observed upon a single day were sufficient to prove habitual user of premises as a brothel.

20. I am satisfied that the language of section 139 is not only designed to eliminate, but is apt to eliminate such difficulties.

21. The second, and the more substantial, point taken on behalf of the appellants is that the charges are bad for duplicity.

22. The charge against the first appellant is as follows :

"MANAGING A VICE ESTABLISHMENT

Contrary to Section 139(b) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong.

WONG Chi-hung alias WONG Ping and CHOW Wai-hung alias CHOW Hung, you are charged that between 30th April, 1981 and 28th September, 1981, at the kam Sear (sic)Entertainment Association Ltd., 13-15, Jordan Road, mezzanine floor, Kowloon, in this Colony, you did manage the said premises as a vice establishment."

23. The second appellant was similarly charged:

"KEEPING A VISE ESTABLISHMENT

Contrary to Section 139(a) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong.

TANG Siu-hung and Yu Kwok-sang, you are charged that between 30th April, 1981 and 28th September, 1981, at the Kam Sear(sic) Entertainment Association Ltd., 13-15, Jordan Road, mezzanine floor, Kowloon, in this Colony, you did keep the said premises as a vice establishment."

The argument here turns wholly upon the meaning of the word "occasion". What Mr. Mayne says is that the charges laid in this compendious form must be understood as comprising a multiplicity of occasions including the 6 separate visits of the police to the premises when the acts of indecency took place. Alternatively to his argument that section 139 is void and meaningless because of the inclusion in it of the words "on any occasion", he asks us to say that those words, conformably with any rational meaning which can be given to the section as a whole, must be construed in a limiting sense as transforming what would otherwise be offences of a continuing nature, chargeable over a period, into something requiring a precise identification of acts appropriated to a particular time, place and individual. An occasion, he says, must in fairness to an accused person, since these are penal provisions, be understood in the simple and familiar sense of an event limited in time and it would, he says, be against common sense and contrary to the need for certainty and precision in criminal charges to regard a period of nearly 5 months, filled with a variety of events touching the activities of a number of individuals, as a single occasion.

24. Resort to dictionary meanings has been useful mainly to the extent of showing how truly remarkable a range of notions the lexicographers have discerned within the penumbra of this unremarkable English word.  Extracts from the whole constellation of Oxford dictionaries, from the pocket companion to the major work, were consulted before us.. These afford equal comfort to the protagonist of the wide as of the narrow view. Thus, among the more relevant meanings, we have: ''a period of time marked by a special occurrence" (Pocket Oxford) which might be said to favour the view of Mr. Mayne; and by contrast: "the course of events or circumstances" (Shorter Oxford) which as clearly tends to support Mr. Plowman.

25. Mr. mayne indeed relies on this very width of accommodation in pressing the view that the Legislature has chosen an unfortunate term and must therefore be fixed with the consequence that if it is susceptible of various interpretations the word "occasion" must be taken in the sense which is least unfavourable to the appellant.

26. Mr. Plowman is undisturbed by the varying content and wide reach of the term. In his view it is apt for the purpose of the Legislature because of the variety of circumstances which it was necessary to cover in repressing the evil of the sexual exploitation of women.   The word "occasion", he contends, will take its meaning from the surrounding circumstances of every case.  It may be restricted to events observed on a single day but it may equally apply to a much longer period and may, without doing violence to common sense, be understood as covering a variety of acts and events within that time.

27. It is clear that unless some such extended meaning be given to it, these charges could not be said to be supported by the Crown's evidence in this case. There was nothing to show that either of the appellants was even present, still less discharging any specific function on any save one of the six days when the Kam Sze Club was visited by police officers masquerading as customers. On the 11th of May, the first appellant was arrested at the premises and taken to a police station but was released shortly thereafter. As against each of them the Crown relies on the evidence adduced to prove his general connection with the premises and his controlling or directory activities in relation to them over the chosen period. This coupled with the very clear evidence that the premises were actually being used for immoral purposes suffices, in the prosecution view, to bring home the charges of keeping and managing.

28. At one point Mr. Plowman put his case in this way: the "occasion" is determined by the evidence available to show the special character (a) of the premises and (b) of the activities going on within them. It is the occurrence of these activities which de-limits and identifie the occasion; or again (enlisting both the dictionary definition which favours him and, in part, the less favourable meaning): an occasion may comprise a course of events or circumstances marked by a special occurrence. Pressed on this he added that it is the activity of keeping which occurs. This moved the court to suggest that he had thus fallen into the logical fallacy involved in a circular definition whereby the charge might be rendered in some such form as "You X are charged with keeping a vice establishment in that during the period when you were keeping the establishment you did in fact keep it." This may, however, have been a misunderstanding of counsel's real argument. At that particular juncture he was endeavouring to deal with several different interventions by the court the purpose of which was to probe the extent of his main proposition which was consequently presented to us in several somewhat different ways under pressure of "cross-examination". The obvious purport of his argument would seem to be better understood as he first put it viz.: that the occasion can be said to be co-terminous with the period during which the objectionable activities were observed to continue.

29. I am satisfied that the section and the charges taken under it, can be understood in this sense without doing violence either to language or to the principles of Natural Justice (which counsel for the appellants also invoked).  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 these forbidden purposes falling within the language of paragraphs (a) or (b) of subsection 3 of section 117.  If that is not established, the charge fails. If it is established, it is necessary to show, in addition, as against the person charged, only that his connection with the premises was such as to lead beyond reasonable doubt to the conclusion that he knew the nature of the activities and had given support to them either by actual physical assistance in the supply of the services available at the premises at any given date and time, or else by exerting a general supervisory control over them or by maintaining a general supervisory interest in the day to day running of the establishment. To put the matter more succinctly, persistent user must be shown of the premises but need not be shown in relation to the conduct of the individual charged.

30. Both of the necessary elements were amply supplied by the evidence against the appellants. No doubt the prosecution could have chosen to charge specific dates as the "occasions" of the offence but since there does not seem to be anything to show that either of the defendants was present on any save one of the 6 days of police action in the premises, there would seem to be no reason to single those dates out for special attention. The general supervising and controlling activities of the appellants would have equally covered any other date or dates within the 4 or 5 months of police intervention and a multiplicity of charges is, in any event, to be avoided. On the limited view of what .can be comprehended in a single occasion, the logical course might be to charge, for example, every day over a chosen period as a separate occasion of keeping etc, The result would be a welter of identical charges such as occurred in Edwards v. Bull & 5 ors⁽⁶⁾ where the offence was said to be of a continuing nature and the procedure of multiple charges was condemned as involving an absurdity since the section of the Act under which the charges were laid was to be construed as creating such an offence. The charge was maintaining a stall in contravention of the provisions of a local Act. Admittedly the formula "on any occasion" did not appear in the section which the court was considering, But, perhaps, both the point of impotency and of duplicity may be disposed of by a further consideration which is directed principally against the idea that what was done in the present case was unjust and unfair. Although the defect of duplicity is one of form and not of evidence, unfairness is, indeed, the moral ground for the objection to duplicity.  The accused is entitled to know precisely what charge he faces. He is not to be embarrassed in his defence by a charge which professing to identify a single crime confuses it with others. Where the evidence is available to show that over a long period the accused has exerted a controlling influence over a vice establishment, the phrase "on any occasion" can be said to comprehend every occasion (in the narrower sense) on which occurred events or activities related to the business of the establishment. Given an unlimited investigative machinery this could result, even over a comparatively short period in many different instances of keeping or managing. The first appellant admitted attending the Kam Sze Club 7 days a week from 3 p.m. to 11 p.m. before, during and after the period charged. Granted that the evidence showed that he knew what was going on in the club and that his work amounted to assisting in the management of it, how can it be said that he was embarrassed by facing a single charge rather than a multiplicity of charges, one for every day he worked there?

31. The same query may be addressed to the case of the second appellant. On his own showing he went to the club 2 or 3 times every month. Once it be granted that this, together with his admitted financial contribution and supervisory role in the setting up of the Kam Sze Club, constitute him a "keeper" of premises which he knew were being used for immoral purposes, his character as keeper persisted de die in diem for as long as his connection with the club remained unchanged. Theoretically he too could have been charged with daily "keepings". In his case even more than in that of the first appellant such a course appears to me to be without any practical utility.

32. Once it is said that section 139 is not self-contradictory in the way alleged against it, the argument from duplicity is left without ground. For the indictment can only be said to betray duplicity by reading into it what is not there but what is said to be there, and can only be said to be there, on a reading of the section which would make the present wording of the indictment a mere endeavour on the part of the prosecutor to conceal his hand and to veil the true case against the appellants. If I understand the duplicity argument aright, it is that the guilt of the appellants under the section, as it stands, could only be established by identifying specific acts of keeping or managing at times and dates clearly stated and proved. The section, that is to say, must be interpreted, if at all, as not creating a continuing offence insofar as the conduct of the individual accused is concerned, even where the evidence shows that the premises themselves have been persistently used for the offensive purpose. This is not a tenable position. 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"' read in conjunction with the minimal requirements prescribed in section 117 for what must be shown to prove the premises a vice establishment vi z.: that the premises etc. were used wholly or mainly by two or more women for the purposes of prostitution; or that the premises etc, were used wholly or mainly in connection with prostitution. Some degree of persistence in user must be shown before the character of the premises is established. Once that has been established, it is not necessary to show repeated instances of managing or keeping by the accused - a single moment of control will suffice to make him keeper or manager. The offence is of a continuing nature and his guilt partakes of that nature but not necessarily because of any persistence in his own conduct. Conversely, however, where (in such circumstances as we have here) the evidence shows prolonged directory, supervisory or controlling activities, it is needless to identify the charged occasion with any specific instance of such control within that period. There may, however, be cases when the evidence available to the prosecution will oblige the preferring of several charges tied to specific dates. In the present case the 2 appellants could, no doubt, have been charged in respect of the 6 visits by the police, a count for each separate visit - but nothing was to be gained by that from the prosecution point of view nor is anything of justice lost to the appellants by the manner in which they have been charged.

33. Among the cases cited to us was A.G. v. TANG Ping-wing⁽⁷⁾ but it is not on the same point. The court there had to consider a somewhat different question viz.: whether premises which in any given period were partly used for purposes of prostitution and partly for legitimate purposes would fall within the description "wholly or mainly" in paragraphs (a) and (b) of section 117 of the Crimes Ordinance, Delivering the judgment of the court, Li, J.A., said :

"If certain premises were used for organizing or arranging prostitution during a portion of a day, say a few hours, or a number of days in a month, it cannot be said that because for the greater portion of the day or month such premises were used for legitimate business that during those few hours, or number of days such premises were not used wholly or mainly as a 'vice establishment' within the meaning of section 117(3). This is so because within that portion of the day or month, that set of premises were used 'wholly or mainly' for organizing or arranging prostitution."

34. In so saying the court was not confronting the issue presently before us: is an offence under section 139 a continuing offence? Indeed the facts before the court in that case disclosed a pattern of regular user and the point was not argued or considered, The debate was centred on the phrase "wholly or mainly" and the implication of the word "used" which appears immediately before that phrase in both paragraphs of subsection 3 was not expressly considered though it is obviously a word carrying similar implications to those connoted by "keep" and "kept". I do not regard that case as deciding that the offences of keeping or managing are not continuing offences concerning which some degree of persistent or repeated user must be shown.

35. A helpful if somewhat remote analogy may be found in those cases in which it has been held proper to charge the aggregate sum of moneys stolen in many small sums over a period of time when it is not possible to prove each transaction which formed part of the general deficiency. Many acts of theft can then be charged as a single act occurring on a day between 2 stipulated dates (See Fallon : Crown Court Practice P.58 citing the case of Lawson⁽⁸⁾).   Such a charge is not, of course, concerned with a continuing offence but the offence is properly so charged because of a continuing course of conduct; the reference to a day between 2 dates is a device to ensure that the strict requirements of form should not be permitted to defeat the ends of justice.. Similarly, in the present case the fact that there is a continuous activity proved against each of the appellants any moment of which could be charged as a separate instance of keeping or managing should not be permitted to inhibit the bringing home of guilt on a supposed defect of form when the section may reasonably be interpreted in a manner which avoids that result.

36. In Anderton v, Cooper⁽⁹⁾, an information alleging that the defendant ''on Friday, February 16, 1979 and other days between that date and Thursday, March 15, 1979 did manage a brothel'', contrary to section 33 of the Sexual Offences Act 1956, was found by the Divisional Court (the Lord Chief Justice presiding) not to be bad for duplicity since the offence was a continuing one. In a commentary upon the case at p.177 in the Criminal Law Review 1980, it is suggested that "a continuing offence seems naturally to mean a single offence which continues over a period of time, hours, days, weeks or months, instead of being committed and completed by a single act".

37. It is of interest that that information - and it is the form approved in Archbold for this offence - is so worded as to combine in one charge allegations which would seem to reflect equally the contentions of Mr. Mayne and of Mr. Plowman as to what may be comprised within a single occasion. To hold that to charge a single day of keeping together with a period of one month involving other acts of keeping does not involve duplicity is to be understood only by regarding the single day together with the longer period as constituting "an occasion" of keeping, in the sense of an unbroken sequence of keeping, for the purposes of section 33 of the Act. Thus construed it matters not to the argument in the present case that the words "on any occasion" do not appear in that provision. The English court was evidently content to regard the keeping as a single offence even though involving a multiplicity of acts extending throughout the month. If a multiplicity of similar acts can reasonably be regarded as constituting a single offence, it is surely as little offensive to reason to regard a multiplicity of similar acts forming one continuous course of conduct as the occasion of an offence under section 139.

38. Anderton⁽⁹⁾ is, at least, persuasive authority to support Mr. Plowman's contention that the term "occasion", as here employed, may cover either a very short or else a relatively extended period of time. I think it was the intention of the Legislature to allow for cases where the evidence against an individual is compelling enough to warrant prosecution either restricted to specific acts observed within a short period of time, or even a single act in no more time than was necessary to observe it, equally with cases where evidence of the keeping, managing etc, is of a more elaborate kind.

39. Being satisfied that the present appellants were well aware of the nature of the enterprise which had their active support, I do not think that they suffered any injustice arising either from the manner of the charge or the wording of the legislation.

40. I would dismiss these appeals.

41. Earlier to-day we dismissed the appeals of the first and second appellants against their convictions on charges under section 139 of the Crimes Ordinance. We were then addressed by counsel in relation to the sentences imposed upon those appellants and in relation to the sentences imposed upon two other appellants who have not appealed against their convictions.

42. WONG Chi-hung, the first appellant, was convicted under section 139(b) of managing a vice establishment and he received a sentence of 12 months' imprisonment. He was ordered to pay costs of $5,000.

43. The second appellant, TANG Siu-hing, was convicted under section 139(a) of keeping a vice establishment and received a sentence of 18 months' imprisonment. He was ordered to pay costs of $5,000.

44. KWUN Yin and LAI Kwok-wah, the third and fourth appellants, were convicted of permitting the premises to be used as a vice establishment, they being tenants therein. They each received sentences which comprise fines of $20,000 each and 6 months' imprisonment suspended for 2 years together with orders to pay in each case $5,000 costs.

45. We have been asked by counsel for the Crown to issue guidelines in respect of this sort of offence as to the range of sentences which should be imposed, somewhat similar to the guidelines which have been laid down in relation to other offences. The example of CHAN Chi-ming⁽¹⁰⁾ in relation to drugs offences was mentioned before us.

46. We do not propose to lay down a tariff in that way, Some offences lend themselves more easily to the application of what I might call statistical tariffs than others. That is so in the case of drugs offences. The kind of circumstances which may occur in relation to vice establishments, while, no doubt, a similarity of pattern may exist, vary, nevertheless, rather more than is the case in respect of drugs offences and certain other offences in relation to which the court has suggested guidelines. What me do in this case in relation to sentence may, of course, be taken as guidance and will, no doubt, affect the judgment of magistrates in similar future cases in considering the proper range of sentences to be imposed.

47. We have had a quantity of materials put before us by Mr. Lyons in an effort to establish the proper range of sentence. Some of those materials I do not think we should consider. In particular, there were commentaries in certain journalistic articles relating to what are known as "fish ball" establishments which are founded upon evidence of various kinds and reproduced in a magazine which may or may not be of authority in relation to the sources which it quotes.

48. There was, however; other material showing the rising incidence of this type of offence in the first four months of 1982. Without proposing a "tariff", this information is nevertheless useful for the purposes of the present case.

49. It is clear that there has been a marked surge upwards in that period - there being 56 convictions for keeping a vice establishment during those months as against 65 for the whole of 1981,Whether this is a short term phenomenon or whether it presages a longer term trend is as yet difficult to say. The materials before us, including the matter to which I have just now referred, indicate that both the terms of imprisonment and the fines imposed in the present case are very substantially greater than any sentences yet imposed in respect of this offence.

50. This increased incidence of the offence is not enough, in the opinion of the members of this court, to justify so sharp an increase either in the sentences of imprisonment or in the fines. Nevertheless, in view of that increase in incidence of the offence, and keeping in mind the very considerable additional strain which that necessarily has imposed upon the police force in carrying out the necessary duties of surveillance which always accompany the investigation of these crimes, we are satisfied that sufficient has been established before us to warrant fines and terms of imprisonment considerably heavier than those which have been imposed in the cases which counsel have brought to our attention. Of the three cases to which Mr. Lyons referred us, one was dealt with by the learned Chief Justice in December of last year. A sentence of 6 months for managing a vice establishment imposed upon a man with three previous convictions, two being also for managing, was reduced on appeal to 3 months. This 6 months' sentence was, in fact, the heaviest sentence brought to our attention.

51. We do not take that case as a headline in respect of what we now think should be done. That is so because of the factors to which I have referred and in particular the obvious increase in the incidence of the offence in the early months of this year.

52. I would add that the Crown although asking for guidelines has not said very much in relation to the circumstances of the particular offences now before the court nor yet in relation to the particular circumstances of the defendants. We have been addressed on those matters by Mr. Mayne and we take into account what he has said on behalf of his clients. They have all now evidently turned to more honest occupations. They are all fathers of families and are supporting their dependants. Nevertheless, we do not think as regards the first and second appellants that there is any legitimate reason for not sustaining immediate custodial sentences, :de allow the appeals of the first and second appellants. For the term of 12 months imposed upon the first appellant, there will be substituted a term of 6 months. We sustain the order for costs of $5,000. For the sentence of 18 months imposed upon the second appellant, we substitute a term of 9 months.  In his case also the order for costs will be sustained.

53. As to the third appellant, the fine of $20,000 will be reduced to $10,000. The suspended sentence will remain and the order for costs will also remain. The same order will be made in respect of the fourth appellant - his fine of $20,000 will be reduced to $10,000; the suspended sentence and the order for costs will remain as they are.

54. I should add that we would have taken a different course in respect of these sentences had there been before us reliable evidence that young persons were involved in this matter. That is a point of considerable importance. Where young persons are involved either as customers or as employees, the court will inevitably take the view that substantially heavier sentences should be imposed. We lack such an information in the present case, We are not prepared merely upon the viewing of certain photographs to assume that the ladies who were employed in this establishment would fit reasonably within the term of "young persons". There is no evidence at all that any young persons were resorting to these premises.

55. Should this disreputable trade show further signs of increase or even should it show no appreciable diminution in the months ahead it may well be that still heavier sentences may have to be considered. The present sentences even thus reduced are, so far as we are aware, several times greater than any yet imposed.

(1)    (1963) 47 Cr. App. Rep. 196

(2)    Cr. App. 686 of 1980

(3)    Cr. App. 1081 of 1981

(4)    Cr. App. 1062 of 1980

(5)    (1887) 8 N.S.W.R. 57

(6)    (1956) Q.B.D. 332

(7)    (1981) Cr. App. Rep. 411

(8)    (1952) 1 All E.R. 804

(9)    (1981) 72 Cr. App. Rep. 232

(10)    (1978) H.K.L.R. 491

LI, J.A.:

56. At this stage of the proceedings we are concerned with the appeal against conviction by the 1st and 2nd appellants. The 1st appellant (1st defendant in the court below) was convicted of managing a vice establishment and the 2nd appellant (the 3rd defendant in the court below) convicted of keeping the same.

57. The charge against the 1st appellant was that he, together with others, between the 30th of April 1981 and the 28th of September 1981 at the Kam Sear Entertainment Association Ltd. in Kowloon did manage the said premises as a vice establishment. The charge against the 2nd appellant was that he, together with others, between the same date of 30th of April and the 28th of September 1981 at the same Kam Sear Entertainment Association Ltd. in Kowloon did keep the said premises as a vice establishment.

58. The grounds of appeal in respect of both appellants may be summarized under two main headings:

59. I have the benefit of reading the judgment of the Lord, the President of this court. With respect, I am in entire agreement with him that the language in section 139 is not that incapable of construction and that a valid charge can be founded upon it. However, I am of the opinion the words "on any occasion" included in that section have the effect of converting what used to be a continuing offence at common law (which gave a natural meaning to the words "keep" and "manage" in relation to immoral offences) into separate offences. for this reason I have the misfortune to differ, with respect, regarding the second limb of the grounds of appeal advanced by counsel for the appellants, namely that the charges are bad for duplicity. I hasten to add that my opinion is one founded entirely on a technicality.  There is no moral in it. This court, indeed, is not a court of morals.

60. There were ample evidence to support the learned magistrate's finding in that the premises in question were used as a vice establishment on all the occasions when visited by the police. There was evidence that on the 11th of May 1981 that the 1st appellant was managing the Kam Sze Club on the said premises and introduced a police officer to a girl whose conduct could only be described as that of a prostitute. There was also evidence that the 2nd appellant assumed the role of a keeper. In this connection there was ample evidence to support the magistrate's finding. Regarding the 1st appellant, he said:

"He was employed at the outset, as manager he said in his own evidence although later he explained that he was a floor manager responsible only for punctuality of staff and the bar supplies, working directly under another man who was originally charged.

Prosecution evidence which I accept is that his name was on the floral boards as manager on the 4th of May 1981.When arrested on 11th of May he claimed he was the manager, He is joint holder of the Club's bank account 'He received the Exhibits P8 and P9 when a temporary licence was needed for the premises. He is still employed there."

61. Regarding the 2nd appellant, the magistrate said;

"He was the major partner-investor in the enterprise to the tune of $1205000. He organised the decoration of the premises, engaging the contractor for work to the value of $180,000, He was one of the joint applicants for a premises licence, and organised another relative as a signatory for the same.  He went to the premises 2-3 times a month on his own evidence. He hired the wage clerk Miss Lo. On 27th August 1981 he was warned that Police view was that between 30th April and 11th May he had kept a vice establishment."

62. Perhaps I should add that it would be quite proper for the magistrate to draw the inference that throughout the period as laid in both charges that these two appellants were in their same respective roles as manager and keeper. Section 139 provides as follows:

63. Had these charges been worded in a different way even to the extent of naming any occasion of the visits by police decoys between the 30th of April and the 28th of September 1981, there would have been no question of duplicity in either of these two charges. The term "on any occasion" in section 139 can have a meaning only if it is meant to change the common law meaning of the words "keep" or "manage" into separate offences on an occasion. An offence may he a separate offence or a continuous offence. It cannot be both at the same time.

64. On the evidence there had been no less than 4 to 5 visits during the period between the 30th of April and the 28th of September 1981. Each visit may be regarded as an occasion. When only one period is specified without segregating any of those occasions, that charge is, in effect, lumping 4 to 5 different offences into one charge.  Once it is accepted that section 139 creates the separate offences,  it cannot be argued that it also creates a continuous offence. I do not construe section 139 as expressing the intent of the Legislature to allow the prosecution to approbate and reprobate. If the offence so created is not continuous, then the cases of Edward v. Bull & 5 ors. ⁽¹⁾ and Anderton v. Cooper⁽²⁾  can give me little assistance.

65. When it comes to the construction of a statute or ordinance, the literal meaning should first be taken. One of such approaches is to refer to the dictionary. According to the Shorter Oxford Dictionary which is more comprehensive than other works, the word "occasion" means: a juncture of circumstances (it itself an event, incident, the course of events or circumstances, a particular casual occurrence or juncture, that time at which something happens, a particular time marked by some occurrence or by its special character).

66. In the present case each visit by a police officer between the 30th of April and 28th September 1981 was a particular occurrence or circumstance.  Both the 1st and 2nd appellants had been called to the police station and warned of the offence after a visit. In fact the 1st appellant was arrested on the 11th May 1981. Such separate actions cannot be described as a course of events or circumstances. They were separate.  Indeed, for the non visiting days (if I may describe them in that way) it was only a matter of inference that the premises were so used as a vice establishment. To out all these events into one charge where five similar offences were committed within a period of over 4 months is duplicity and may, depending on the evidence, be unfair for not giving certainty as to time and date of the offences alleged.

67. The charges as presented in such form have caused me great anxiety and some research. In the end, however, I am satisfied that, despite the duplicity, this court is entitled, where there has been no substantial miscarriage of justice, to apply the proviso.

68. In the present case, the dates to which the different offences being committed within the period had been given in evidence. As I said before, the first and second appellants assumed their respective roles throughout the period as laid in the charges. At the time when the charges were laid, there was no objection on the part of the defence to have the charges quashed for duplicity before evidence was adduced.

69. In the case of R. v. Thompson ⁽³⁾ , there was a charge of incest in the following terms:

"......on divers dates between the month of January 1909, and the 4th October, 1910, the prisoner did have carnal knowledge of his daughter."

The learned Chief Justice delivering judgment of the court said, at page 258:

''He appeals upon the ground that the indictment is bad for duplicity, or, in other words,- that more than one offence is charged in each of the aforesaid two counts of the indictment."

At page 259, ho said:

"It was urged before us that a prisoner was entitled to have sufficient notice of each offence charged against him, and that the effect of grouping a number of different offences in one count and charging the ceased with. having committed them 'on divers days' between certain periods was an objection not merely of form, but one of substance, because it might prejudice the fair trial of the prisoner, but that even if it was only an objection of form it must prevail."

Later, he said:

"We dismissed this appeal on the ground that, even assuming that the objection raised after plea to the defect in the form of indictment was not taken too late, and that the appellant could have moved in arrest of judgment, no substantial miscarriage of justice had occurred, and that we were therefore bound to give effect to the proviso in section 4, sub section 1 of the Criminal Appeal Act, 1907, which is as follows:......."

Having cited that sub-section, His Lordship said:

"If we had thought that any embarrassment or prejudice had been caused to the appellant by the presentment of the indictment in this form, we should have felt bound to quash the conviction, whatever our views might be as to the merits of the case. It must not be thought that we are deeming that such objections should not be allowed to prevail either at the trial or in this Court.   An indictment so framed might undoubtedly hamper the defence, and if it did we should give effect to the objection. There are also other objections to an indictment which must be held good at any time, as, for example, an objection on the ground of want of jurisdiction.

One of the objects of section 4 was to prevent the quashing of a conviction upon a mere technicality which had caused no embarrassment or prejudice.  Whilst giving the right of appeal upon any wrong decision of any question of law, the object of the Legislature was that justice should be done in spite of a wrong decision, and that the Court should not interfere if it came to the conclusion that, notwithstanding the wrong decision, theme had been no substantial miscarriage of justice."

In the case of R. v. Robertson⁽⁴⁾, the Lord Chief Justice adopting this approach said:

"There is a word to be added with regard to the indictment in this case. No complaint was made on that matter in the Court below, but the indictment is not in the proper form.  It is elementary that a count in an indictment should not charge more than one offence. It is obvious, however, that the first count in the indictment before us deals with scores, if not hundreds, of offences. the charge was laid as one of obtaining, with intent to defraud, food from an hotel over a period beginning on June 14, 1935, and ending on February 27, 1936 - that is to say, a period of over eight months, on every day of which it is alleged that the offence was committed.

It is said that that form of indictment is becoming 'common'; it ought to be stopped. It is difficult to understand why an indictment should be framed in that form. It is said that the object was to have all the material before the Court, but that could have been achieved by charging the last of the offences and giving evidence of the others. It is to be hoped that this kind of indictment will disappear. In the present case, if objection had been taken to the indictment, it would no doubt have been promptly amended, and no injustice was, in the circumstances, done to the applicants."

In that case the application for leave to appeal was also refused.

In the present case, I feel that Mr.Mayne(learned counsel for the appellants) has a valid argument as to duplicity. In my opinion, however, it may be better that the charges of the same nature may be preferred as separate charges and that the prosecution would select one or two incidences as the substance of single charges. Other evidence, according to the dictum of the Lord Chief Justice in the case of Robertson⁽⁴⁾, may be used, if applicable, as evidence of similar facts. Following the eases of Thompson⁽³⁾ and Robertson⁽⁴⁾ I am of the opinion that, in this particular case also, no substantial miscarriage of justice had been done Accordingly.  I would also dismiss the appeal albeit for a slightly different reason.

(1)    (1956) Q.B.D. 332.

(2)    (1981) 72 Cri. App. Rep. 232.

(3)    (1913) C.A.R. 252

(4)    (1936) C.A.R, 208

Representation:

D. Mayne, Q.C. & Miss Sze Kin (C.P. Tsang & Co.) for Appellants.

G.J. Plowman & D. Lyons for Respondent/Crown.