The Queen v. Tam Wing Kwong and Others

HCMA000043/1988

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BETWEEN

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Coram: The Hon. Mr. Justice O'Connor in Court

Date of hearing: 29th and 30th March, 1988

Date of delivery of judgment: 31st March, 1988

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J U D G M E N T

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1. The first appellant was convicted on a charge of managing a vice establishment, and the 2nd and 3rd appellants were convicted on charges of assisting in the management of a vice establishment, all charges being laid under Section 139(b) of the Crimes Ordinance, Chapter 200. On two consecutive days, the 10th and the 11th August 1987, two police officers in plain clothes visited Queen's Ballroom in Mongkok. That premises had been a licenced Ballroom for about 20 years. On each occasion they were brought to separate booths and separately asked whether they had a familiar hostess. Each said 'no', and arrangements were made to bring them one. At least three different girls were supplied. The girls asked the officers would they go double. The officers agreed. The girls left for a short period and then returned, and they then began, on their own initiative, to touch the officers indecently and lead the officers' hands to intimate part of the girls' bodies. The officers played a passive role throughout. After about 40 minutes the officers called for the bill. On the first occasion each bill was $186, and on the second occasion each was $154. Shortly after the 2nd incident, that is on the 11th August, a police party raided the premises. The 1st appellant admitted that he was the person in charge. The 2nd appellant was the person who on the 11th August brought the officers to booths and brought girls to them. The 3rd appellant was the person who on the 10th August led both officers to booths, brought girls to them, also brought the bills to them and collected payment. She also brought the bills and collected payment on the 11th August.

2. There was no defence evidence. There was evidence given as to the layout and lighting of the premises. The lighting was very dim, for example, the officers wished to be able to identify the girls brought to them, and in order to be able to do so, they had to light cigarettes so that they would have the light from their lighters with which to see the faces of the girls sitting next to them. The evidence disclosed that in a number of ways the seating was in breach of the regulations made on the Miscellaneous Licences Ordinance, Chapter 114. For example, those regulations provide that where a seat is designed to accommodate more than one person, it shall be fitted with an arm-rest, which segregates, from each other, the persons using the seat. That is obviously aimed at preventing persons getting into a reclining position on the seat. The seats in this premises were apparently aimed at providing that facility, in conditions of such darkness as I have described. The magistrate referred to a number of matters, each in itself not perhaps overly significant, but which when taken together, justify his finding as to the usage of the premises.

3. It is said, on the appeal, that Section 139(b) of the Crimes Ordinance creates separate offences of managing, assisting in the managment and being in charge or control, and that the admission by the 1st appellant could only establish the offence of being in charge, or at most the offence of assisting in the managment, but that it could not establish that he was managing. The learned magistrate dealt with this matter relying upon two cases, Queen v. Kwong So, Magistrate's Appeal 12 of 1985, The Queen v. Lo Wai Hon, Magistrate's Appeal 985 of 1985, and he might have added the Queen v. Chong Ming Chin, Criminal Appeal 294 of 1984. In those cases convictions of managing a vice establishment, on the basis of admissions of being the person in charge, were upheld on appeal. It is clear on the wording of the section, particularly the employment of words, "or is otherwise" that for the purposes of the section, "otherwise in charge or control", includes managers. The vice versa is not necessarily so, but generally it would be. Managing means exercising operational control. I might make a general observation here, a lot of sterile argument and unmeritorious tactical defences would be avoided, if in drafting legislation, one verb was used in the offence creating section, and if it were thought necessary it could then be defined so as to include other verbs, so that only one offence would be created.

4. On the evidence of his admission the 1st appellant was a person in charge. That, in my view, is sufficient evidence itself to conclude that he was, on that occasion, the person exercising managerial or operational control powers, and therefore he was managing.

5. Admissions had been made under Section 65 (c) of the Criminal Procedural Ordinance, Chapter 221, that the employment cards, found in the premises, were truthful as to their contents. The card of the 1st appellant stated that he was an accountant, that of the 2nd appellant indicated that he was an usher, and that of the 3rd appellant that she was a chief leader. The point is taken that the admissions were conclusive and no evidence could be led to contradict them. Evidence that the 1st appellant was in charge, or the manager, and that the other appellants were assisting in the management, did not contradict that they held the posts set out in the employment cards. Rather than contradict the information in the card, such evidence supplemented it. The magistrate found they were doing as charged, he was not barred from so finding by the agreed facts. The magistrate when considering whether the 1st appellant knew what is going on the premises and the nature of the usage, took into account the admitted fact that he had been the accountant there for many years. He was entitled to take that into account as a relevant circumstance, it would have been flying in the face of common sense not to have done so.

6. As regards the meaning and application of the words "assist in the management" I have been asked to hold that the Queen v. Tam Kim Leung, Criminal Appeal 1081 of 1981 was wrongly decided, in that it misapplied the English cases referred to therein. I was asked to follow instead, the case of the Queen v. Chiu Piu [1963] HKLR 193, and Queen v. Chan Man [1976] HKLR at p. 287. The decision in Tam Kim Leung is per incuriam in that the then Chief Justice in giving that decision was not apparently aware of the decision in Queen v. Chiu Piu. However, he expressely considered the point that arose in the Chiu Piu case and he impliedly adopted the decisions in German v. Standen [1963] 3 All E.R. 762 and Abbot v. Smith [1964] 3 All E.R. 762, which had been approved of in Criminal Appeal 762 of 1980. The judgment in Tam Kim Leung does not purport to set out an inflexible rule as to what amounts to assisting in the management of a vice establishment. It merely sets out helpful guide-lines, or as Mr. Harris put it a rule of thumb. The judgment itself makes that clear, and also makes clear that the mere performance of menial and routine activities would not suffice, even if the guide-lines were satisfied. In the Queen v. Chung Yin, Magistracy Appeal 615 of 1982, consideration was given to both the decision in Chiu Piu, and that in Tam Kim Leung and it was found they were not in conflict. In the Attorney General v. Tam Ping Wing [1982], H.K.L.R. 1, the Court of Appeal did not consider either of those decisions, but it had had no difficulty in concluding that an employee, who was employed as an usher, and to introduce girls to the customers, and collect money, could properly be held to be assisting in the management of the establishment. In my opinion assisting in the managment, means assisting in the operational control of the establishment. Each case must, of course, be considered on its own facts, when deciding whether or not that has been established. The 2nd, 3rd appellants brought the appellants to booths, offered them hostesses and chose particular hostesses for them, in addition the 3rd appellant brought the bills and collected money. They were both going beyond the mere performance of menial and routine activities. They were exercising control over the girls and assisting in the operational control, that is the management of the establishment. The decision in Tam Kim Leung has been repeatedly followed on appeals from magistrates, and I consider that properly understood it is helpful.

7. The magistrate, at paragraph 12 of his judgment, says that the officers could identify the 3rd appellant, because when she presented the bills, the torch light reflected from the tray. Neither witness gave evidence of that, however, nothing turns on this misapprehension by the magistrate, as the officers were there to observe, I have seen the torch used illuminate the bill, and I am sure the officers could have identified her by light from it, and did so.

8. A point was taken that the magistrate ought not to have found any breach of the Miscellaneous Licences Ordinance, because the police say that on entry by their party on the 10th, there were no breaches. The magistrate says, correctly, that was not a decision for the police but for the court. The police evidence, at most, means that they did not see any breaches, that they knew of. The photographic evidence makes it clear that there were breaches, as I have related, in relation to the seating. The object and purposes of those breaches were relevant matters for consideration, in so far as they pointed towards the usage of the premises.

9. The magistrate, in his judgment, says that if the officers had enquired from the hostesses as to the usage of the premises, the officers relating such conversations would be giving hearsay evidence. Whether it would be such, or not, would depend on the exact nature of the conversation, whether, for example, the hostesses just recited past events or whether they made contemporaneous offers etc. However, nothing turns on this opinion of the magistrate, as it did not relate to a ruling he was giving on evidence, but merely to criticism made, by defence counsel at the trial, of the police officers, permitting acts of gross indecency to be performed on their person. Defence counsel was correct, in criticising the police activity being carried to such lengths.

10. It was contended before me that there was no sufficient evidence that the premises had been kept as a vice establishment. The learned magistrate considered this matter in some detail, relying, not only, on what happened on the two days on which the police visited the premises, but also on the nature and condition of the premises themselves. A ground appeal is that the magistrate ought not to rely upon the premises being dark, as there was no evidence that the lighting was less than that required by the dancing hall licence. The magistrate referred to being entitled to use his scientific knowledge, as to the brightness of the light required by the licence. That 0.3 of a foot candle. The magistrate was wrong in saying he could rely on his scientific knowledge. He could have consulted a work of reference to decide what a "foot candle" meant. But that would not have helped him to decide whether the lighting in the premises was in accordance with the terms of the licence. However, in the event the magistrate did not rely on his scientific knowledge. The fact that the lighting did not contravene a condition of the licence, would not mean that the lighting, or lack of it, was not a relevant factor to be considered with other relevant factors on the issue of the nature of the premises.

11. It was also submitted that the fact that the premises had been licenced annually for about 20 years, was an indication that it was a legitimate dancing hall business. That is, of course, a relevant matter that has a certain resemblance to good character evidence with regard of an individual. However, like a Q boat, in war, it may be found convenient, to sail as it were, under false colors. Furthermore, we do not know how long it had been kept as a vice establishment. Perhaps it has only changed its trade recently.

12. A point which was also taken that it was not wholly or mainly used for vice. On the two occasions, when the officers visited, there were in all five. customers, and at least four of them were offered hostesses, who took the initiative to act indecently.

13. Another point taken is that the police, officers evidence was contradictory as to whether there was a dancing area. The differences in evidence on this point are not significant. They are explicable, on the basis of a difference of opinion as to whether a sparse, empty patch of floor could properly be so described. There were a number of other minor grounds of appeal which were sufficiently dealt with during the course of the hearing and it is unnecessary to say more now than that they have no substance.

14. The magistrate in this case, Mr. To, dealt with this case in an accomplished manner, he brought abundant common sense to a well laid out judgment, which demonstrates a well grounded knowledge of the applicable case law. The minor criticisms I have voiced do not detract from its overall competence. The appeals are dismissed. There is no appeal against sentence.

Representation:

Mr. E.C. Harris, Senior Crown Counsel, for Crown.

Mr. A.J.J. Sanguinetti and Mr. G. Plowman (C.K. Mok & Co.) for all the appellants.