The Queem v. So Kam Yuen

CACC000305/1983

The appellant convicted for managing a vice establishment, having been charged with keeping the same. No amendment to the charge made. Failure to comply with Section 27 of the Magistrates Ordinance is a non-compliance of substance. Conviction quashed.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

Coram: Hon. Bewley, J.

Date: 19th April 1983

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JUDGMENT

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1. The appellant was charged with keeping a vice establishment, contrary to Section 139(a) of the Crimes Ordinance, Cap. 200. He was convicted of managing a vice establishment, contrary to Subsection (b) of the same section and against this conviction he now appeals.

2. Evidence implicating the appellant was given by 2 self-confessed prostitutes. The first girl, Miss Au, said he invited her to go to premises that he described as 'a .place for prostitutes' to have intercourse with a customer. The appellant was there when she arrived and he introduced her to the customer. He gave her $250 as her 'share' and left the premises. Miss Au then went into a room with the customer and intercourse took place. According to her, this happened on 2 separate occasions.

3. The other girl, Miss Chow, said the appellant took her to the premises only once. He said he could not find any girls and asked her for help 'to be a prostitute'. No customer materialized, however, and she left without being paid.

4. The appellant did not give evidence or call witnesses.

5. In his Judgment, delivered at the end of the case, the learned magistrate said he believed the prosecution witnesses and accepted their evidence. But in the final paragraph he said, 'In my own mind I am sure (the appellant) was keeping that premises but for what ft is worth I give him the benefit of the somewhat lesser charge of Managing Vice Establishment.' In his Reasons for Verdict he amplifies this by saying that he gave him the benefit of a small doubt.

6. I do not understand how, if the magistrate was sure that the appellant was keeping the premises, he could have had any reasonable doubt that the appellant was guilty as charged. In any case, 'managing' is not a lesser charge than 'keeping'; they both carry the same penalty.

7. Mr. Mayne, for the appellant points out that, while there was evidence of keeping, there was no evidence of managing. He concedes that, had the magistrate convicted the appellant as charged, he would have been in difficulties in this appeal.

8. He submits, however, that having ailed to comply with the provisions of Section 27 of the Magistrates Ordinance, Cap. 227, and making the necessary amendment to the charge, it was not open to the magistrate to convict the appellant of a different offence. This is conceded by counsal for the Crown. Indeed there is ample authority for the proposition that non-compliance with the section is a non-compliance of substance. See Wong Sai-yu v. R. ⁽¹⁾, Yeung Chiu v. R. ⁽²⁾ and Sonca Industries Ltd. v. R. ⁽³⁾ .

9. I am reluctant to allow the appeal on technical grounds, but, on the authorities, I am bound to do so. The appeal is allowed, the conviction quashed and the sentence of 9 months imprisonment set aside.

(1)    1973 HKLR 382

(2)    Crim. App. No. 1043 of 1975

(3)    Crim. App. No. 1342 of 1977

Representation:

Mr. Jennings, Senior Crown Counsel for the Respondent

Mr. Desmond Mayne, Q.C. (assisted by counsel Mr. Roderick Murray) instructed by Howell & Lo, for the appellant