The Queen v. Wang Yee-ping (D1) and Others

HCMA000634/1988

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 634 OF 1988

BETWEEN

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Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 22nd September 1988

Date of Judgment: 11th October, 1988

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J U D G M E N T

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1. The four Appellants were convicted after trial on charges alleging offences contrary to s.139 of the Crimes Ordinance, Al's offence being managing and the other Appellants' being assisting in the management of a vice establishment. The charges alleged that the offences occurred on 2nd February, 1988 at premises known as King Dao Ballroom on the ground floor of a building in Wanchai.

2. The charges arose out of visitsby undercover police officers on two successive evenings. The first visit occurred on 1st February when one officer went alone. A3 met him and asked if he had "a familiar girl". When the officer said, "No", A3 said he would introduce a friendly one. When the officer asked: "How friendly?", A3 replied: "Try it and you will know." He tried it and came to know how to enjoy more than friendship by agreeing to "go double". For $192 he had her company for 50 minutes during which time she, on two occasions, took one of his hands and placed it under her clothing and on "her breast". The touching was of short duration being between 30 and 60 seconds.

3. The next evening he returned in the company of another under cover officer. A3 greeted both and escorted them to separate tables. Again A3 asked the "familiar girl" question of each and again when each said, "No", a girl was introduced by another or appeared introducing herself. On this occasion A3 served a bottle of Coca-cola at each table. One officer was asked by his girl whether he wanted "double clock unit" whilst the other was asked by his whether he wanted "to go double". Agreement in each case was followed by lewd conduct on the part of the girl and the presentation after 45-50 minutes of a bill in the sum of $172. A4 presented the bills and received the payments.

4. When the officers left they met their inspector who then led a raid on the premises. A2 was then sitting behind the cashier's counter and A1 admitted to the police that he was the period in charge of the premises.

5. There were other customers on the premises on the occasion of each visit but no one was seen to dance, one area was "very dark" and and the only form of entertainment apart from the lewd conduct of the girls was ''recorded music".

6. The first ground of appeal attacks the finding that the premises were being kept as a vice establishment. It alleges that the learned magistrate relied on four primary findings of fact to support his finding that the premises were so kept and that in making the primary findings he erred by wrongly failing to take account of or deal with 11 matters of "evidence and issues". Those 11 matters were set out as follows :-

"(a)     that the alleged indecent behaviour of the hostesses was a private arrangement made between the respective hostesses and the police witnesses and not connected to the objects and intentions of the management of the ballroom."

7. There was no evidence to suggest that that was so. The girls received no money directly. Their conduct and the conduct of the introducers and the collector of the money indicated that their conduct was part of the business being operated on the premises. "

"(b)     that what the hostesses allegedly stated to the police witnesses was not admissible evidence to prove that the premises were kept as a vice establishment but merely of the fact that they were said."

8. What the hostesses said was part of the conduct of people employed on the premises. Evidence of that conduct was relevant to the question of the use being made of the premises. As the learned magistrate said: "I considered (the evidence of the conversations) to be admissible hearsay relevant to one issue only, that of whether the premises were being kept as a vice establishment. It had no relevance to the issues of the Defendants' roles in the premises or of their knowledge of what the hostesses were doing"_.

"(c)    that 'going double' meant the customer elected to pay a higher fee in order that a particular hostess would remain with him at his table and not move to another one."

9. That may have been part of the meaning but the real meaning as disclosed by the evidence of conduct which the learned magistrate accepted was that agreeing to any "double" request meant agreeing to pay extra so that the hostess would indulge in lewd conduct.

"(d)     that there was no evidence to support his finding that 'in reality it meant vice services were being offered'."

"(e)    that there was no evidence that the lighting inside the ballroom was different in degree when the hostesses were allegedly indulging in indecency AND when the Inspector carried out the raid on the premises."

10. There was nothing in the evidence given by the inspector which contradicted, or was inconsistent with, the evidence given by the undercover officers regarding the lighting at the tables where the lewd conduct occurred.

"(f)     there was no evidence that torches were used to improve visibility in the premises."

11. That is true but the learned magistrate did not find, and none of the undercover agents alleged, that the whole premises were blacked out. The tenor of the evidence of both undercover agents was that the lighting varied. It was the area in the vicinity of tables 22-30 which was described as "very dark" but there was also evidence of lighting at some tables and over the dance floor area.

"(g)     that there was no evidence to counter the Defence evidence that the ballroom's lighting was operated by one switch and therefore was of one degree."

12. The learned magistrate refers to this evidence in detail in his Statement of Findings. After paraphrasing the Prosecution and Defence evidence relevant to the question of lighting  he goes on to say this:-

"Ultimately it was a question of credibility and I had no difficulty in deciding that the Defendants were giving a wholly false picture of the lighting conditions at the material time. My main reason for coming to the conclusion was that I found (the two agents) to be honest and straightforward witnesses upon whose evidence I could confidently rely, but in addition I concluded that the Defence had overstated their claims on this issue. "

"(h)     that PW2 on 1 February expressed his fear to a hostess that someone would see them behaving indecently."

13. In evidence in chief PW2 said that after a minute's touching he withdrew his hand saying: "Someone will see." He then sat there for a while before leaving the premises altogether. At the time he made the remark he had gathered evidence of two acts of lewdness on his first visit. In cross-examination he said that he made the remark because he did not want to continue touching the girl and wanted to leave.

"(i)     that the alleged respective acts of sexual indecency only lasted for a very short time."

14. It is not the ticking of the clock which determines whether premises are being kept as a vice establishment. If two or more prostitutes use the premises wholly or mainly for the purpose of performing lewd acts the premises are by definition, a vice establishment it matters not whether it takes 30 seconds or 30 minutes to perform each act.

"(j)     that the Third Appellant on 2 February instructed the hostess 'Ching-Ching' to leave PW1 and to move to another table."

15. The evidence of the witness was that after that was said the hostess asked him to "go double". As soon as-he agreed she said to A3: "He's going double. I'm not moving". There was no evidence as to what A3 then did but there was evidence of what the hostess did. She remained and indulged in lewd conduct for about eight minutes.

"(k)     that the layout and the seating of the ballroom was not probative of the issue of whether the premises were kept as a vice establishment."

16. If it was not, how can it be alleged, as this ground alleges, that the learned magistrate "wrongly failed to take it into account or deal with it"? The proposition overlooks the decisions holding that the layout of the premises is a factor of some weight in certain vice establishment cases.

17. Ground 2 alleges that "the learned Magistrate had no evidential basis for rejecting the evidence of the Defence witnesses". The answer to that allegation is to be found in the comments on 1(g).

18. Ground 3 alleges that "the learned Magistrate failed to consider properly or at all that there was no direct evidence or sufficient circumstantial evidence which could establish that any one of the Defendants had knowledge of the alleged indecent acts of the hostesses".

The learned magistrate in his Statement of Findings said: "Knowledge that the premises were kept as a vice establishment is almost invariably a question of inference to be drawn from proven facts. The factors which can properly be drawn would include: the nature of the premises, its layout and lighting, the presence or absence of other services such as music and dancing, the amount and method of calculation of the bills tendered to customers and the reaction and demeanour of the Defendants when giving evidence about their knowledge or lack of it."

19. The learned magistrate considered all those matters and that consideration led him to hold, on grounds which I find unchallengeable, that each Appellant had that knowledge.

20. Ground 4 alleges that "the learned Magistrate wrongly found that the actions of the Fourth Appellant on 2 February amounted to assisting in the management of the ballroom."

21. The learned magistrate actually found that what A4 was doing amounted to assisting in the management of the vice establishment. A4's case was that he was employed as secretary to the proprietor of the premises, a job which entailed working elsewhere than at the premises and that he was at the premises by chance at the time of the police raid. The learned magistrate was prepared to accept that A4's main employment was unconnected with the management of the vice establishment. He did, however, have no doubt that A4 was working at the premises on the night of 2nd February and that he "was assisting in the management in the way described by PW1 and PW2". That evidence showed that he presented the bills and accepted payment from customers with whom prostitutes had indulged in lewd behaviour after those customers had agreed to "go double" or "double clock unit". That conduct did amount to assisting in the management.

22. Those are all the grounds advanced and none has any merit. The Appeal of each Appellant is dismissed.

Representation:

Mr. S.P. Kelly, C.C. for the Crown

Mr. A.J. Hatton (Laurence Pang & Co.) for Appellant