The Queen v. Tam Wing Kin and Others

CACC000329/1983

IN THE HIGH COURT OF HONG HONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 329 OF 1983

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BETWEEN

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Coram: Hon. Barnes, J. in Court.

Date: 9th May, 1983.

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JUDGMENT

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1. The Appellants were found guilty of the following offences under section 139 of the Crimes Ordinance:-

2. Sections 139 and 117 of the Crimes Ordinance, insofar as they are material, provide as follows:-

shall be guilty of an offence ..........."

3. Unchallenged evidence adduced by the prosecution showed that the premises in question consisted mainly of bench-type seats with high backs so constructed as to form 48 alcoves each apparently designed to accommodate no more than two people. There were no facilities for serving food, no dance-floor or stage. By the side of each alcove or booth there was apparently a small table or ledge about eight inches wide on which a drink container could be placed. But the only observable amenity was secluded seating accommodation.

4. Other evidence led by the prosecution was seriously challenged but the part of it accepted by the magistrate showed that on two successive days the premises had been visited by police officers. The first visit was made by two officers posing as "customers". They were met by an "usher" who took each to a separate booth. He used a torch to light the way as the booth area was so dark. The "usher" asked each whether he knew any of the girls. Shortly after that each officer was joined by a girl and in each case the girl behaved in a lewd manner. The officers received a bill in the sum of $240 which they paid. Neither of them consumed anything on the premises other than a glass of soft drink each.

5. On the following day one of the officers visited the premises again. Posing as a customer he was led by the same usher, using a torch to light the way, to a booth where again he was asked whether he knew any of the girls. He gave the name of the girl he had been with the day before. Shortly afterwards she joined him and almost immediately repeated her lewd behaviour of the day before.

6. Whilst this officer was still there the police party to which he belonged raided the premises. Some members of the party saw, with the aid of a torch light before their presence was announced, another female employee of the establishment committing an act of sexual indecency with a male in one of the booths. When the police presence was announced a flashing red light signal was transmitted from the ceiling.

7. All the Appellants were on the premises at the time of the police raid. The 1st Appellant said:

"My post is the day session manager. The things which I do include the employing, and discharging of persons, to supervise the subordinates in their works, of how to serve the customers, ushering, the serving of tea and water, and to teach the hostesses (they) are only allowed to chat with (the customers) if engaged at the table, and not to do immoral acts."

8. The 2nd Appellant said he was responsible "for receiving cash, marking the time in the time sheets, calculating and checking bills".

9. The 3rd Appellant said:-

"I am responsible to lead the customers to the seats and lead the mistress(es) to sit with the customers at the table, and give soft drinks to the customers."

10. The 4th Appellant said:-

"My works are to lead the customers inside to take seats. Then, if the customers have familiar hostesses, I would lead the hostesses who were specified by the customers to the seats. If the customers have no familiar hostess, I would go out and arrange for a hostess to the customers."

11. The 5th Appellant said:-

"Every day (one character deleted), if the customers come here, my daily work is to greet the customers, and lead the customers to the seats, and introduce the hostesses to the customers."

12. None of the Appellants gave evidence but a witness was called "on behalf of the defence". She ("D.W.1") gave evidence that she worked as a hostess at the premises at the time of the two police visits and was still so employed at the time she gave her evidence. Her professional name was the same as that given, according to the evidence of one of the police officers, by the girl who sat with him on the occasion of the first visit on 6th May and who, according to him, claimed to be menstruating. Her evidence was that she was one of 10 or so hostesses employed on the premises at the time of those visits and that she was engaged by the 5th Appellant who was the manager of the business being conducted there. He told her that she was employed to sit with customers in the booths and chat to them but that she was to do "nothing more than that". After sitting with a customer for 10 to 15 minutes she would "suggest doubling it". If the customer agreed to her suggestion she "would not move to another booth". She said she had not been fondled by any customer nor could she have been menstruating on 6th May as she usually began on the 10th or 11th of the "Western calendar" month. In cross-examination she said that in eight years she had never menstruated on the sixth of any month. She also said that there were no red lights flashing on 7th May.

13. The magistrate did not accept her evidence where it was conflict with other evidence which he accepted about the lewd behaviour and lighting arrangements. Having accepted the evidence of the lewd behaviour of the girls he could not reasonably have made any finding of fact other than that the premises had been used mainly for the purposes of prostitution by at least two women on each of two successive days. From that finding he had to conclude as a matter of law, having regard to the provisions of section 117(3), that the premises had been proved to be a vice establishment on the occasion of each police visit. Since there were two such occasions on two successive days it was therefore open to him to find, as he did, that element of habitual user necessary to constitute a "keeping" of the premises as a vice establishment. Consequently, he would have been acting unreasonably if he had come to any conclusion other than that it had been proved beyond reasonable doubt that on the occasion of the second police visit the premises were being kept as a vice establishment.

14. The lay-out of the premises, the lighting arrangements, the behaviour of the "ushers" and "hostesses" and the charges levied all lead to the compelling inference that no business other than that of a vice establishment was being carried on at the premises. The magistrate therefore had to find that anyone managing the business being carried on there was managing "premises kept as a vice establishment" and that anyone employed as an "usher" or as the "calculator and checker of the charges" levied was assisting in the management of the premises so kept. How then could any reasonable magistrate fail to convict any of the Appellants?

15. Through their counsel they say that none should have been convicted for the following reasons:-

"    That the convictions are unsafe and/or unsatisfactory in all the circumstances of the case and without prejudice to the generality of the foregoing inasmuch as:

(1)  the reasons given by the learned magistrate for rejecting the evidence of the defence witness (in his "Decision" and referred to in paragraph 21 of the "Statement of Finding") were not cogent reasons;

(2)  the learned magistrate failed to give any weight to those parts of the caution statement (Exhibit p.2) of the 5th Appellant which negatived the required mens rea inspite of the learned magistrate's statement to the effect that he had given Exhibit 2 "its full weight", if the 5th Appellant did not have the required mens rea there would no or no sufficient evidence against the 1st, 2nd, 3rd and 4th Appellants in respect of each of the charges against them;

(3)  inadmissible evidence was allowed in regard to what allegedly transpired between a customer called "Woo Wai Ming" and a hostess called "Siu Ting"; alternatively that it does not appear from the Record for what purpose the learned magistrate admitted the aforesaid evidence

(4)  there was no or no sufficient evidence that in regard to the 1st, 2nd, 3rd and 4th Appellants they were “assisting in the management" of the premises as opposed to the possibility that they were "assisting the management" of the premises."

16. Paragraph 21 of the Statement of Findings reads:-

"I rejected the only defence witnesses evidence for the reasons also set out in my decision. (She was still employed by the Fifth Appellant and she gave evidence of an incredible menstrual cycle)."

17. The notes of his decision delivered at the conclusion of the trial, as far as this point is concerned, read as follows:-

"D.W.1. Period only varied by 1 day each way from a norm established by reference to a Western month, irrespective of whether 28, 29, 30 or 31 days in the month. D.W.1 employed by D5 still. Unbelievable. Reject it."

18. The argument of the Appellants is that as there was nothing inherently incredible in D.W.1's evidence about her menstrual cycle and she was unshaken in cross-examination the magistrate should have accepted her evidence. In the course of this submission criticism was levelled at the magistrate's reference to her evidence that she was still employed at the premises and it was argued that his scepticism about her evidence regarding her menstrual cycle must have been motivated by some esoteric experience usually unavailable to bachelors and therefore incapable of being recognised as part of a magistrate's "judicial knowledge". I think the argument is ill-founded and the criticism unwarranted. It is not an esoteric experience to consult a good English dictionary and find that the two expressions used to describe this cycle spring from Latin and Greek words which referred to a lunar month. The Oxford English Dictionary accepts that the cycle is usually measured by reference to a lunar month. So the magistrate was not projecting an image of himself as an expert in female physiology but merely demonstrating that he was aware of the full import of a commonly used English word. One does not need to be an astronomer to doubt the truth of the assertion: "No full moon ever appears on the 6th day of a Gregorian calendar month". That was the point the magistrate was making. His reference to her employment was merely an indication of how she might have been influenced to tell such an incredible tale.

19. The Appellants complain that the magistrate did not give "full weight" to answers made by the 5th Appellant when questioned at the premises at the time of the "raid". The magistrate accepted part of what the 5th Appellant said but rejected the part where he said he had no knowledge of lewd conduct occurring in the premises. In doing that the magistrate was performing his "jury function" in accordance with the law. If he found any part of that "statement" to be untrue he was bound to eject it. On the evidence he accepted which included, on the one hand, the 5th Appellant's statement that he was in charge of the business being conducted there, and on the other hand, the evidence which led to no other conclusion than that the only business being conducted there was that of a vice establishment, he could not accept that the 5th Appellant did not know what that business was. I do not see how the magistrate, acting reasonably, could have come to any conclusion other than that each of the Appellants knew that the premises were being kept as a vice establishment.

20. The evidence alleged to be inadmissible is evidence by a member of the police party on the "raid" that when he shone his torch into one of the booths he saw one of the hostesses committing an act of sexual indecency with one of the customers. This evidence was relevant to the issue of whether or not the premises were being kept as a vice establishment. An argument was advanced that the evidence was "hearsay". The officer who said he saw this act gave direct evidence of having seen it. There could be no question of his evidence being hearsay. But he also gave evidence that he reported his observation to the inspector in charge. That evidence was allowed in, not to prove the truth of what the officer said he saw, but as evidence of his conversation with the inspector which led the inspector to put that matter to the 5th Appellant for his comment. The evidence was admissible.

21. In his Statement of Findings the magistrate makes it clear that he was guided by the decisions in Abbott v. Smith ^(I), Gorman v. Standen ⁽²⁾ and Tam Kim-leung and ors. v. R. ⁽³⁾ in deciding whether the first four Appellants were proved to have been "assisting in the management of the vice establishment". Counsel for those Appellants argues that, although the tests suggested in Tam Kim-leung ⁽³⁾ are expressed as a development of the principles formulated in Gorman v. Standen ⁽²⁾ and Abbott v. Smith ⁽¹⁾, a proper examination of the latter two cases discloses that they do not include within the category of "assisters in the management" those who are mere employees as distinct from those who exercise some form of control over the vice establishment qua vice establishment.

22. The Divisional Court in Gorman v. Standen(2) said that the phrase "assisting in the management" was designed to cover the situation where the absent proprietor of a brothel business entrusts the day-to-day running of it to a woman on the premises. In other words, if on the premises, there was one woman who was charged with the responsibility of "pairing off" prostitutes and customers and determining the charges the latter had to pay, then that woman was "assisting in the management". As a corollary, if the two responsibilities were to be divided, that is, one woman assuming the "match-making" role and another the "negotiating" role, each would be "assisting in the management" because each would have a say or responsibility in connection with the control or running of the business as a business.

23. The job description of the role does not affect its intrinsic nature. The role of match-maker still belongs to the management side of the business even though it may be labelled "Mistress of Ceremonies" in one establishment and "usherette" in another. So also the person who has "a say in the control" of the business to the extent of ensuring that the proper fees are paid may be called an "accountant" or a "cashier" but his role still keeps him within the description.

24. Counsel for the Appellants placed great stress on certain words used by Judge Chapman in Abbott v. Smith ⁽¹⁾ in arguing that "ushers" and "cashiers" do not ''assist in the management". What Judge Chapman said was this (at pp. 665-6):

"What is required, in my view, is some sort of evidence indicating the taking of an active part in the running of the business as a business, something suggesting control. In Gorman v. Parker (1964) 1 Q.B. 294, 303, Lord Parker C.J. said: 'The mere fact that a woman participates in the activities being conducted in the brothel does not make her a person assisting in the management of a brothel.' Still less does it make her one of the managers. I do not say that only a person in the position of a director, or a representative or agent of a director, can be a manager, but there must, as I see it, be something a cut above purely menial or routine duties."

25. The underlining of the text has been done by me to indicate the part of the judgment emphasised by the Appellants' Counsel.

26. In that case Judge Chapman was dealing with an allegation of "managing" in respect of one appellant and an allegation of "assisting in the management" in respect of the other. Although he stressed the element of control it is nevertheless quite clear from the passage quoted that he considered that that element could be established even where "managing" was alleged where the evidence showed "something a cut above purely menial or routine duties".

27. It is also quite clear that he was influenced in saying that by what the Divisional Court had said in Gorman v. Standen ⁽²⁾. In that case Lord Parker, L.C.J., with whose judgment the other two members of the court agreed, said (at p. 35): -

"So far as the stepdaughter was concerned, Barbara Joan Gorman, I confess that the evidence is very thin. I take it that it must be right that the mere fact that a woman participates in the activities being conducted in the brothel does not make her a person assisting in the management of a brothel. 'Assisting in the management of a brothel' seems to me to contemplate in the ordinary way the case of a man who runs a brothel not living there himself; he keeps and manages it, but he has on the premises a woman who assists in the management. That, no doubt, is the ordinary case contemplated. But where, as here, the two women are living together in the same premises in the relationship of stepmother and stepdaughter and where as the evidence shows, albeit it is thin, that it is the stepdaughter who has a part at any rate of the say of what goes on at that house, then, as it seems to me, it is possible to find that she was assisting in the management."

28. The statutory offence in that case was expressed in the following way:-

"Any person who keeps or manages ....... or assists in the management of a brothel shall commit an offence."

The evidence was that police officers had seen Gorman and her stepmother taking men to certain premises, of which the stepmother was the tenant, or, a number of occasions. When the police raided the premises they obtained evidence that both Gorman and her stepmother were acting as prostitutes. The stepmother was held to have been rightly convicted of keeping a brothel. Gorman was convicted of assisting in the management of a brothel. If the evidence against Gorman had consisted of no more than is related above the Divisional Court would not have upheld the conviction. The additional evidence upon which it was able to find that she had assisted in the management was the following statement she made to the police after being shown her stepmother's statement:-

"It's all my fault -- she's frightened of me. If I told her to go upstairs and sleep with a man, she would do it."

29. In saying that, Gorman supplied evidence that she had at least a part of "the say" in the running of the brothel qua brothel because she had authority to "pair-off" another prostitute with a "customer". It so happened that that other prostitute was convicted of managing the brothel but that, I think, was an incidental matter. It was not the extent to which she could ascend the hierarchy when organising liaisons that mattered. The crucial fact was that she had authority in the course of the day-to-day running of the business as a business to organise a relationship between one of the prostitutes working in that brothel and one of the brothel's "customers". That authority gave her control over a part of the running of the business as a business and the duty she performed in exercising that authority was neither menial nor routine. By borrowing the dichotomy used by economists one can say that in the performance of that organising role she was engaged in the "management" and not on the "labour" side of that business enterprise.

30. In my view, it is consistent with both Gorman v. Standen⁽2) and Abbott v. Smith ^(l) to hold that the "ushers" in this case who were responsible in the day-to-day running of this vice establishment for organising liaisons between prostitutes employed by the establishment and customers patronising it were "assisting in the management" of it; and to hold that the "cashier" who was responsible for determining the charges to be paid by customers on the basis of the extent of their relationship with those prostitutes was "assisting in the management" of that vice establishment.

31. The Appellants also argued that this was a case for the application of the "lurking doubt" principle. The foundation for this argument assumed substance in one or more of the submissions already referred to and dealt with. As there was no substance in any of them there is equally, in my view, no substance in this submission as well.

32. The appeal of each Appellant against conviction is dismissed.

33. The fifth Appellant has appealed against the sentence of imprisonment for nine months imposed in respect of the "managing" offence.

34. He is 43 years of age with two minor previous convictions. Neither conviction was in respect of an offence in any way similar to this. The first, in 1974, appears to have been a "touting" offence at the airport whilst in respect of the other, in 1979, the offence is described as "assisting in bookmaking". The magistrate thought that "the common thread running through his convictions was a willingness to earn his living in a way which involved breaking the law".

35. The only evidence before the magistrate regarding the ages of the prostitutes and their patrons would suggest that the establishment neither employed nor attracted immature youngsters who might be morally corrupted by its influence. It was not, therefore, the type of establishment for which the Court of Appeal in Wong Chi-hung v. R. ⁽⁴⁾ would reserve the more severe custodial sentences. On the other hand, the number of appeals in respect of this type of offence suggests that the proliferation of this type of establishment, of which the Court of Appeal saw evidence in the statistics of prosecutions produced at the hearing of that appeal, has not abated. I could not say that an immediate custodial sentence in this case was wrong in principle in the light of what was decided by the Court of Appeal in that case. What I can say is that it is too harsh a sentence to be allowed to stand now in view of the mitigating material put before me on the hearing of this appeal.

36. The fifth Appellant has already served 44 days in prison. In his present state of health I think that he has already suffered sufficient punishment and there are indications that the sentence originally imposed has had a deterrent effect on him. I therefore allow the appeal to this extent: the original sentence is quashed but in substitution therefor I impose a sentence of imprisonment which will enable his immediate release.

(1)    (1965) 2 Q.B. 662

(2)    48 Cr. App. R. 30

(3)    Cr. App. 1081/81

(4)    Cr. App. 285/82

Representation:

Mr. Plowman, Senior Crown Counsel, for the Crown.

Ms. Sanguinetti & Mr. Cheng Huan (John Ip & Co.) for all 5 Appellants.