The Queen v. Chong Ming Chin

Case No.CACC 294/1984[1984] HKC 294

Court

Court of Appeal

Date25 Jun 1984

Judge—

Case Document

100%Judiciary

CACC000294/1984

Cr. App. 294/84

Managing premises kept as a vice establishment - sufficiency of evidence Surrounding circumstances may raise a reasonable inference that premises were being kept as a vice establishment even if the testimony of the witness relates to events on one night.

Decision of magistrate affirmed.

IN THE HIGH COURT	Criminal Appeal
	No. 294 of 1984

BETWEEN

THE QUEEN

AND

CHONG Ming-chin

(Appellant)

_________

Coram: Fuad, J.A. (Sitting as an additional Judge of the High Court)

Date of hearing: 19 June 1984

Date of handing down reasons: 25 June 1984

_________________________

REASONS FOR JUDGMENT

_________________________

Fuad, J.A. :

1. On the 19th June 1984, at the conclusion of the hearing, I dismissed this appeal and now give my reasons.

2. The appellant was convicted on the 21st March 1984 by a Magistrate of managing a vice establishment c./s. 139(b) of the Crimes Ordinance (Cap. 200) and sentenced to 9 months' imprisonment, suspended for 12 months. He appealed against the conviction. He was represented by a solicitor at his trial, and by Mr. Whitehead on the appeal.

3. The Magistrate found the following facts (and it is not his findings of facts which are challenged by this appeal, but his conclusions upon them) -

	(a)	that on the 9th March 1984 two "undercover" police officers visited the premises in question "and were permitted to indulge in lewd acts" with two girls employed there; and civilian witness was also permitted to indulge in such acts;
	(b)	that the appellant was present in the premises and told another police officer who was in the raiding party that he was "in charge";
	(c)	that the premises consisted mainly of one room with booths. The room was in darkness. Customers sat with hostesses. Ushers showed customers to their booths and fetched hostesses to them. "Pencil" forches were used. "Doubles" were offered.

4. The Magistrate reached the conclusion that the appellant managed the premises because he was present and claimed to be in charge. He found that the premises were kept as a vice establishment because of "the compelling inference to be drawn from the layout/lighting/pencil torches/booths/lack of food/music/the behaviour of the ushers and the hostesses/the darkness/and the double charge" and "the evidence of P.W.1 and P.W.2 that there were acts of lewdness between themselves and two hostesses and P.W.3's like testimony which corroborated evidence of P.W.1 and P.W.2."

5. The Magistrate also held that the premises were wholly or mainly used for the purpose of vice. Such use at the time of the police raid was sufficient.

6. I will deal with the second ground of appeal first and it can be got out of the way quite shortly. It is said that the evidence failed to prove that the appellant knew or must have known that the premises were kept as a vice establishment. On the assumption for the moment that the premises were indeed being kept as a vice establishment, since the appellant was on the premises and said he was in charge (this evidence was not challenged in cross-examination) and the appellant elected to give no evidence, there was ample evidence to establish that he knew what was going on. There is no merit in this ground of appeal.

7. The main ground of appeal was that the evidence had not established that the premises were kept as a vice establishment. Mr. Whitehead cited a number of authorities to me. I do not need to refer to them all. He relied first on the decision of Ridley J. in Martin v. Benjamin [1907] 1 K.B. 64 where the issue was whether certain premises were being kept for a lottery. At p. 67, Ridley J. said this -

"	........in the Act under consideration the offence is the 'keeping' of an office or place for the purpose of a lottery, and I do not think that using a place once is keeping it for that purpose. In order to constitute a keeping there must, I think, be something habitual ..... I think that user on one occasion does not constitute a keeping within the section ........."
Marks v. Benjamin 9 L.J. M.C. 20 referred to in that case is, in the words of Ridley J., "strongly in points."
In Dudley v. Holland [1963] 3 All E.R. 732 in deciding what meaning should be given to "keeping" a vehicle on a road, Lord Parker L.C.J. said, at p. 734 -

"	........ I approach the word 'keeps' in what seems to me the ordinary meaning of some continuing process; not a mere isolated moment, but a keeping of the car there, at any rate for some interval of time. It is no doubt a matter of degree and fact in every case."
I was also referred to The Queen v. TAM Wing-kin (Criminal Appeal No. 329 of 1983 - unreported) where Barnes J. Said -

"	Since there were two such occasions on two successive days it was therefore open [to the Magistrates] to find, as he did, that element of habitual user necessary to constitute a 'keeping' of the premises as a vice establishments"
I, of course, recognise the force of these authorities but it seems to me that it is essential to bear in mind, as Lord Parker indicated in Dudley v. Holland, that it will be a question of fact in each case, when addressing this issue, whether the element of some continuity has been sufficiently established. In my judgement it is dangerous to attempt to lay down a formula that will govern each case from the words used in widely differing cases by individual judges. An event which takes place once, or a number of similar events which take place on a single night may indeed be insufficient to establish that the premises were being "kept" as a vice establishment, but as common sense would dictate, it cannot be right to say that evidence of the surrounding circumstances in a given case can never lead to a proper inference that the events observed were not merely isolated incidents but indicated that the premises were in fact being kept as a vice establishment with some degree of continuity.
When the evidence is read as a whole, I am left in no doubt that there was ample evidence before the magistrate for him to draw the inference that the appellant was managing premises which were being kept as a vice establishment. Since the appellant chose not to go into the witness box he cannot complain if a proper inference was drawn, and drawn more readily in view of his election. All the evidence was one way and he could easily have said what the premises were in fact being used for if things were not what they seemed.

	( K.T. Fuad )
	Justice of Appeal

Cited by 1 case

Other judgments that cite this case

HKSAR v. Ma Pik Ki

High Court CFI23 Apr 2004