Read the full judgment text of CACC 000285/1982 on BabelCite. This Court of Appeal judgment was delivered on 15 June 1982 before McMullin, V.-P., Li & Yang, JJ.A..
Criminal law – vice establishment – statutory interpretation – duplicity – continuing offence – Crimes Ordinance (Cap 200) s.139 – 'on any occasion' – keeping a vice establishment – managing a vice establishment – appeal against conviction – appeal against sentence – proviso to quashing for duplicity – The Kam Sze Entertainment Association Limited at 13-15 Jordan Road, Kowloon. The four appellants were convicted of offences arising from the running of the Kam Sze Entertainment Association Limited on the mezzanine floor of 13-15 Jordan Road, Kowloon, as a vice establishment. The first appellant WONG Chi-hung was convicted of managing the vice establishment contrary to s.139(b) and sentenced to 12 months' imprisonment. The second appellant TANG Siu-hing was convicted of keeping the vice establishment contrary to s.139(a) and sentenced to 18 months' imprisonment. The third and fourth appellants, as tenants, were convicted of permitting the premises to be used as a vice establishment and received fines of $20,000 each with 6 months' imprisonment suspended for 2 years. The principal legal issues were whether s.139 of the Crimes Ordinance is rendered void or unworkable by the inclusion of the words 'on any occasion' in its opening clause, and whether charges under s.139 framed as occurring between two specified dates covering multiple police visits are bad for duplicity. The Court of Appeal (McMullin V-P and Yang JA; Li JA dissenting on the duplicity point only) held that s.139 is not self-contradictory, ambiguous or incapable of construction: the phrase 'on any occasion' qualifies the defendant's role as keeper, manager or controller, while the character of the premises as a vice establishment must still be proved by evidence of persistent user. On duplicity, the majority held that the offence under s.139 is of a continuing nature, so the charge spanning nearly five months was not duplicitous; Li JA held that 'occasion' must be construed in its narrow sense, rendering the charges technically duplicitous, but applied the proviso because no application to quash had been made before evidence was adduced and no substantial miscarriage of justice had occurred. All appeals against conviction were dismissed. On sentence, the court considered guidance materials showing a marked surge in such offences in early 1982, and reduced the custodial sentences for the first and second appellants to 6 and 9 months respectively, and reduced the third and fourth appellants' fines to $10,000 each, while sustaining all costs orders of $5,000. The court declined to lay down a sentencing tariff for vice establishment offences but observed that the reduced sentences remained substantially heavier than any previously imposed.
Legal issues: Validity of section 139 Crimes Ordinance given the phrase 'on any occasion' · Whether charges under section 139 are bad for duplicity
Outcome: Appeals against conviction dismissed; sentences reduced on appeal. Li JA dissented on the duplicity point only but would also have dismissed the appeals by applying the proviso.