The Queen v. Kwong Ling Cheong and Another

HCMA001506/1989

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1506 OF 1989

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BETWEEN

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Coram: Hon. Ryan, J. in Court

Date of hearing: 28 February 1990

Date of judgment: 14 March 1990

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JUDGMNT

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1. After trial before Mr R. Walters, the 1st appellant was convicted of managing a vice establishment and the 2nd appellant of assisting in the management of a vice establishment. They appeal against these convictions.

2. The charges followed a visit to the Wah Hsia Ballroom, a licensed public dance hall, by three police officers posing as customers. They were escorted to booths and were joined by hostesses who allegedly performed acts of lewdness with them. A police raid followed and the appellants were arrested. The 1st appellant said he was the person in charge on a temporary basis. The 2nd appellant was identified as an usher. At the time of the raid, a band was playing, the disco light was on but the premises was said to be dimly lit. When the lights were turned up following the raid, evidence was given of customers and hostesses standing up in the booths adjusting their clothing.

3. The Magistrate accepted that there was nothing in the layout of the premises or the books of account from which he could infer that the premises were being kept as a vice establishment. He also found that there was no evidence which established that the hostesses had offered the police officers the opportunity of 'going double'. Only one of the police officers paid a bill headed 'dancing ticket'. No dancing had, in fact, taken place, but as no evidence was adduced as to how that bill was calculated, the Magistrate found it was of no help to him in deciding whether it included a 'going double' fee.

4. The Magistrate found as a fact that the ballroom had been very dimly lit and that when the lights had been turned up, customers and hostesses were seen to be adjusting their clothing. He also accepted as true the evidence of two of the police officers that acts of lewdness had taken place between these officers and their hostesses.

5. The first ground of appeal is that there was no or no sufficient evidence that the premises in question were kept as a vice establishment, as no irresistable inference can be drawn from the evidence adduced, accepted by and relied upon by the learned Magistrate to establish a pattern of persistent or habitual user.

6. The second ground of appeal is that the Magistrate did not make a finding as to whether the premises were used wholly or mainly for the purpose of prostitution or, alternatively, that there was no or no sufficient evidence to show that the premises were in fact used wholly or mainly for the purpose of prostitution.

7. Mr Sanguinetti, who appears for the appellants, rightly conceeds that there are occasions when evidence obtained from one visit can be sufficient to establish the element of continuing user but submits that this is not one of those cases. He points to the facts that no evidence was adduced to show that the dance hall was in breach of the licence which states that the luminosity should not be less than 0.3 foot candle power. This is true but in my judgment the Magistrate was entitled to take into account the evidence that the premises were in fact dimly lit. He also refers to the provision of a dance floor, a dance band, the availability of food and the absence of a double-charge as supporting the submission that the finding of keeping was wrong. I do not agree. The evidence of the lighting, the behaviour of the ushers and hostesses, the acts of lewdness between the police officers and the hostesses and the reaction of the other customers and hostesses when the lights were turned up were such as to entitle the Magistrate to find that the events which took place on the evening of the raid were not merely isolated incidents but indicated that such services were being provided with a degree of continuity.

8. The Magistrate did not include in his statement a finding that the premises were wholly or mainly used for vice. I am satisfied that in coming to the verdicts that he did, he would have had this consideration in his mind.  In any event, the evidence, in my judgment, lends itself to only one proper inference, that is that the premises were being mainly used for and in connection with the organizing or arranging of prostitution.

9. The final ground of appeal is that the Magistrate erred in inferring knowledge on the part of each appellant. The appellants elected not to give evidence. The Magistrate, having found the premises to be a vice establishment, was entitled on the evidence to infer that they knew what was going on.

10. The appeals are dismissed.

Representation:

Mr Philip O'Brien, S.C.C. for Crown.

Mr A.J.J. Sanguinetti, assisted by Mr Eddie Yip inst'd by Haldane Midgley & Booth for both Appellants.