R. v. Cho Yuen Fai and Another

HCMA001356/1996

1996, No. MA 1356

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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Coram: Hon Leong, J. in Court

Date of hearing: 11 February 1997

Date of judgment: 11 February 1997

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J U D G M E N T

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1. The 1st and 2nd appellants were convicted of managing a vice establishment and assisting in the management of a vice establishment respectively. Both now appealed against conviction.

2. The evidence against them briefly was this :

3. Three police officers PW2-4 posing as customers went to the Kam Yuen Sauna at Shanghai Street Kowloon. PW2 and PW3 were greeted by the 1st appellant and they saw the 2nd appellant inside the premises. The 1st appellant then took PW2 into a room where pornographic videos were being played. He told PW2 that he would introduce a girl to him and he also told PW2 the fee for sexual service. When PW2 agreed, the 1st appellant subsequently brought a girl into the room who took off her clothes and started to fondle PW2. PW2 revealed his identity and arrested the girl before she proceed to the actual sex service. PW3 was also taken into a room by the 1st appellant who told PW3 he would introduce a girl to him and the fee for her sexual service. The 1st appellant later on brought into the room a girl who took off her clothes and performed sexual acts. Thereupon other police officers arrived and the girl was arrested.

4. PW1 was the inspector in charge of the party. He went into the premises and asked who was the person responsible. The 1st appellant replied he was responsible for greeting customers, introducing girls and collecting money. He saw the 2nd appellant in the premises and he ordered that the two appellants be arrested, the 1st for managing a vice establishment and the 2nd for assisting in the management of a vice establishment.

5. PW4 gave similar evidence that the 1st appellant had introduced to him a girl to perform service including oral sexual and intercourse. Subsequently, a girl came into and she performed such sexual service.

6. PW3 who arrested the 2nd appellant told the magistrate that when the 2nd appellant was cautioned, he replied "Ah Sir, please give me a chance. I can't find a job and I've also had an operation. I can't do any labouring work that's why I am engaged in this field at the moment."

7. PW5 who went to the premises with the inspector told the magistrate that when the 2nd appellant was asked what he was doing there, he said he was responsible for cleaning and tidying the rooms.

8. Both appellants did not give evidence.

9. The magistrate in his statement of finding stated that he found the premises were kept as a vice establishment and he relied on the evidence of PW2, 3 and 4 and the verbal admission of the 1st appellant to convict the 1st appellant.

10. As regards the 2nd appellant, he said "I found the prosecution had proved beyond reasonable doubt that the second accused had been assisting in the management of the premises at the time in question. I relied on his presence at the scene throughout this operation, as well as his admissions to PW5 and PW3. Those admissions were consistent, and also explained his earlier presence."

11. The ground of appeal of the 2nd appellant was that there was no sufficient evidence to support the prosecution case. Mr Coghlan for the 2nd appellant submitted that mere presence in the premises without more did not prove that the 2nd appellant participated in the management of the premises as a vice establishment. The 2nd appellant's verbal reply to the police officers was not admission which the magistrate could rely on to convict him on the offence of assisting in the management of a vice establishment. Knowledge of the premises being run as a vice establishment was insufficient. There must be some degree of control over that activity. It was submitted that the admission was only that he was a cleaner and the fact he asked the officer for a chance was not an admission that he was taking an active part in the management.

12. Reliance was placed on Abbott v. Smith [1964] 3 AER 762 where it was held that there must be evidence of taking an active part in the running of the business as a business to amount to management, something suggesting control and not purely menial and routine duties. Another case cited was R.v. Tam Wing Kwong [1988] 2 HKLR 313 where O'Connor J. applying Abbott v. Smith, held that the test laid in the operational control of the establishment and not merely involvement in menial or routine duties.

13. The evidence accepted by the magistrate showed nothing more than that the 2nd appellant was present in the premises. His reply was at the most an admission that he was a cleaner on the premises and there was no admission of active participation in the control of what was being conducted in the premises. The evidence showed that the 1st appellant was actively engaged in the running of the business in the premises as a vice establishment.

14. In Abbott v. Smith, Judge Chapman said at page 765

"What I have to consider is whether there is evidence from which it can fairly or reasonably be inferred that Sarah Abbott on the dates in question was managing a brothel, or that Kathleen was assisting in the management of a brothel. 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 [1963] 3 AER 631 Lord Parker, CJ 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, such as cleaning the stairs or answering the door."

15. There was simply insufficient evidence to support the prosecution case that the 2nd appellant was taking part in the management of the premises as a vice establishment. The conviction against him could not stand. The appeal of the 2nd appellant against conviction was allowed. His conviction was quashed and the sentence set aside.

16. There was ample evidence which the magistrate accepted for him to convict the 1st appellant of management of a vice establishment. His appeal against conviction must be dismissed.

Representation:

Mr Tam Tze Lok, C.C., for Crown/Respondent 1st Appellant in person

Mr C.D.F. Coghlan inst'd by D.L.A., assigned for 2nd Appellant