HKSAR v. Lam Albeachat

HCMA000181/2000

HCMA181/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.181 OF 2000

(ON APPEAL FROM NKCC NO.7069 OF 1999)

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Coram: Hon Suffiad J in Court

Date of Hearing: 14 March 2000

Date of Judgment: 14 March 2000

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J U D G M E N T

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1. The appellant was convicted after trial by the learned magistrate, Mr Sinclair, for the offence of assisting in the management of a vice establishment, contrary to section 139(1)(b) of the Crimes Ordinance, and was sentenced to five months' imprisonment. He now appeals against both conviction and sentence.

2. The particulars of the charge are that on 3 December 1999, the appellant assisted in the management of the Kam Fa Finger Cure at 1/F, No.123-125 Tung Choi Street, Mongkok, Kowloon which were kept as a vice establishment.

3. The facts of the case as found by the learned magistrate was that on the day in question, two police officers, being PW2 and PW3, disguised themselves as customers and entered the Kam Fa Finger Cure premises. Upon entry to the premises, PW2 and PW3 were greeted by the appellant who came out from his seat behind the counter. The appellant then led PW2 and PW3 each to a room and after ascertaining from them what girls they wanted, he promised to find for them "well stacked and big bobbed girls". He then left PW2 and PW3, telling them to take a shower first. Several minutes later, a second man, the co-defendant in the case with the appellant, came to the doors of the two rooms where PW2 and PW3 were. This second man brought along with him two women who were carrying towels. After PW2 and PW3 had agreed the two women to be acceptable, PW2 and PW3 then each paid to this second person four $100 banknotes, that being the fee demanded. The two women then entered the respective rooms in which PW2 and PW3 were, undressed and began to perform lewd acts of a sexual nature on PW2 and PW3 respectively.

4. A raid by a police party led by an Inspector, who was PW1 in the case, brought an end to the activities in these premises. When the police party entered the premises, the appellant was back in his position behind the counter.

5. The appellant is unrepresented today in his appeal and appears in person. His ground of appeal is that he knew nothing at all as he was just a cleaning worker. In so saying, the appellant can only be challenging the learned magistrate's findings of facts.

6. Findings of facts are normally left to the tribunal who had the advantage of seeing and hearing the witnesses give their evidence. An appellate court would be slow to interfere with findings of facts by a tribunal who heard the evidence unless such findings were either against the weight of the evidence, or unsupported by any evidence. That is not the case here and I can see no good reasons to interfere with the learned magistrate's findings of facts.

7. Moreover, no evidence was called by the appellant nor by his co-defendant at the trial where they were both represented by counsel. The suggestion that the appellant was only a cleaning worker at the said premises was never made at the trial by defence counsel, not even when PW2 had testified that it was another Chinese male, by the name of "Siu Li Man", who had claimed to be a cleaning worker at the said premises.

8. In coming to his finding that the appellant had told PW2 and PW3 that he would find for them "well stacked and big bobbed girls", the learned magistrate inferred from these words that the appellant was lauding the attributes of his wares for prostitution, and this demonstrated that the appellant had knowledge and had participated in assisting the management of this vice establishment. The learned magistrate, in my view, cannot be faulted for the decision that he arrived at from the evidence before him.

9. The appeal against conviction is wholly without merits and is accordingly dismissed.

10. I turn now to deal with sentence. In sentencing, the learned magistrate took a starting point of six months' imprisonment and reduced it to five months on the basis that the defence had done no more than putting the prosecution to prove its case. In my view, six months as a starting point is not manifestly excessive, neither is it wrong in principle in offences of this type, see the decision in HKSAR v. Ng Tsz Fung, MA No.800/1998. Accordingly, the appeal against sentence of five months' imprisonment is also dismissed.

11. Had this appellant been represented today, I would have seriously considered making a further order in relation to his sentence on the basis that this appeal, both in respect of conviction and sentence, is wholly without merits. However, in view of the fact that he is unrepresented and, therefore, presumably without the benefit of legal advice, I desist from making any further order apart from dismissing both the appeal against conviction and sentence.

Representation:

Mr Albert Wong, SGC of DPP, for HKSAR

The Appellant in person, present