Wong Sau Ngor v. The Queen

HCMA000036/1988

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BETWEEN

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Coram: de Basto, J.

Date of Hearing: 24th February & 9th March, 1988.

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J U D G M E N T

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1. The appellant, a married woman aged 42, was convicted of managing premises at Block H, 3rd floor, 227 Nathan Road, Kowloon kept as a vice establishment on the 30th September, 1987 and was sentenced to 6 months' imprisonment.

2. On that day two police officers posing as customers went to the Hong Kong Macau South East Asia Marriage Service Company on the 3rd floor of 227 Nathan Road in Kowloon. They found the appellant sitting at the counter - there is no suggestion anyone else was present. The appellant asked the two officers "What girls do you want to look for to play?" They left it to her. She said, "Thai girls. The fee is $280 including bop, blowing flute and body massage." Both officers testified they understood 'bop' to mean sexual intercourse and "blowing flute" oral sex. The appellant told them to wait and about ten minutes later she brought in a girl and asked whether she was suitable. The first officer replied in the affirmative and the appellant took him and the girl out from Block H to Block E which was diagonally opposite and on the same floor as the marriage bureau. The appellant opened a door in Block E with a key and they entered. The appellant then said, "Give the $280 to the lady and then it will be fun." Both officers had marked banknotes and these were used in the payments. The appellant then called out loudly, "Auntie, rent a room" and a woman came in and asked for $40 for the rental of the room. The girl undressed and had a bath and so did the first officer who then revealed his identity and told her to put on her clothes and sit on the bed. The second police officer gave similar evidence to that of the first officer as to what happened in Block H. About four minutes after the first officer had been attended to by the appellant, she brought in another girl and asked him to pay the girl $280 which he did. Then the appellant led that officer and the girl to room 3 at premises opposite the marriage bureau called the Italy Villa. The appellant called loudly to a woman who came in and asked for $40 for the rental of the room and that woman issued him a receipt. The girl had a bath and when she came out the officer revealed his identity and told her to put on her clothes and sit on the bed.

3. The evidence I have very briefly outlined above is, in my experience, common in cases like the present including the fact that after bringing girls and settling the price, the accused then leads the police officer to nearby premises frequently in a different block but on the same floor.

4. The appellant gave evidence, inter alia, that one of the officers asked if there were Filipino or Thai girls and if they were "registered", that one officer asked for a girl "around 20 something" and that she had said, "When the girls come and they are the right partner for you then give red packets to the girls as a gift for meetings or introduction." She testified the officers said they didn't have any red packets and so she gave each of them a red packet in the presence of the girls inside Block H. The officers put money into the packets and gave them to the girls and they then took the girls away. She said she had asked the officers their ages and told them to enter their particulars in the register. I mention this evidence as none of it was suggested to the police officers. The appellant testified she lost the register in a taxi on the way to court. She said the two girls were visiting Hong Kong on tourist visas. She said she had seen and spoken to these same girls during the four days she had been working there - she spoke to them in Chiu Chow. She said the girls could find boy friends within 14 days, presumably the time limit of their visas and when the girls left Hong Kong they would inform her they were going back to Thailand to get married. I noted that she testified that girls who left Hong Kong to get married in Thailand would inform her and not some other person.

5. Mrs Austin for the appellant very helpfully filed her skeleton argument in which she specifically identified the various passages in the evidence and the Findings of Fact which she would be relying on. I also had the advantage of reading the twenty authorities she filed. It is not out of disrespect to counsel that I do not refer to any of the cases, many of which referred to vice-establishments operating in the form of "fish balls".

6. There were 5 grounds of appeal against conviction - I will not rehearse each of them as they comprise three typed pages.

7. The first ground included the statement that the magistrate failed to consider sufficiently or at all whether Block H were premises used wholly or mainly for the purpose of prostitution. The appellant was there obviously referring to section 117(3)(a) of the Crimes Ordinance whereas it is clear the magistrate, having regard to the evidence, relied on section 117(3)(b) of that Ordinance. Sub-paragraph (b) reads :

" Premises, vessel or any place shall not be treated as a vice-establishment for the purpose of this part unless

(b) the premises, vessel or place are or is used wholly or mainly for or in connexion with the organizing or arranging of prostitution.        "

And thus the question of whether the premises in Block H were used wholly or mainly for the purposes of prostitution does not arise.

8. Mrs Austin submitted that the prosecution evidence, taken at its highest, only revealed the offence of assisting in the management of a vice-establishment. But who was she supposed to be assisting? I have already referred to her evidence that the girls on the register who returned to Thailand to get married would report to her and not some other person.

9. It is true the magistrate made reference to the Italy Villa - it was not strictly essential to his finding - he could have convicted the appellant solely on the basis of the evidence of what had happened in Block H. Mrs Austin referred me to the fact that in this case the appellant had not claimed to be the manager, nor was there any evidence she taught or employed or fired employees or that she held the bank account, that there was no evidence of any money found on her and that she had only been seen once by the police. It is not necessary for any of the above to be proved before finding a person guilty of managing a vice-establishment. Once the learned magistrate believed the prosecution witnesses of what happened in Block H, of the reference to girls being available "for play", the reference to the price of $280 which included sexual intercourse and oral sex and the bringing of the two women into the room at Block H, there was more than sufficient evidence for the magistrate reasonably and properly to convict the appellant of the offence charged.

10. Mrs Austin also mentioned that the key the appellant used to enter Block E had not been found on her. However, when the prosecution adduced evidence that she had used a key to effect entry into Block E that evidence was not challenged in any way.

11. For the reasons given I do not think it necessary to amend the charge by deleting "Block H".

12. There was ample evidence before the learned magistrate to enable him to come to the conclusion he did and the appeal against conviction is dismissed.

13. Turning to the question of sentence, Mrs Austin submitted that the sentence was wrong in principle in that the learned magistrate commented on the conduct of appellant's defence in his reason for decision on sentence and that this could be construed as meaning she was being punished for pleading "not guilty". Mrs Austin further submitted that the sentence was manifestly excessive in that it was appellant's first offence in relation to vice-establishment. She had four previous convictions relating to other minor offences for none of which she was given a custodial sentence.

14. I am wholly unable to say that the sentence was wrong in principle or manifestly excessive and therefore the appeal against sentence must fail. The appeal against sentence is also dismissed.

Representation:

Mr C. Harris, Senior Crown Counsel for Crown.

Mrs Austin instructed by Messrs. Haldane Midgley & Cheung for appellant.