The Queen v. Li Kin Wai and Another

HCMA000102/1985

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 102 of 1985

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BETWEEN

Coram: Hon. de Basto, J.

Date of hearing:

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JUDGMENT

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1. The 1st Appellant was convicted on the 19th December, 1984 of managing a vice establishment in premises known as the "Sun Wah Night Club and Bar" situated at 687-689 Nathan Road (hereinafter referred to as "the said premises"). The 2nd Appellant was convicted of assisting in the management of that vice establishment.

2. Evidence was adduced by the prosecution at the trial that, on instructions, two police officers on the 2nd October, 1984 went to the said premises and were each led to a booth with the use of torches it was very dark. Both officers testified they were supplied with a woman after they had replied in the affirmation to a question as to whether they wanted "to double" - both the women performed acts of lewdness on the two officers. There was evidence that on at least two previous occasions, namely the 5th and 27th September, 1984 Inspector Abrahams went to the said premises. He and other witnesses testified as to what happened on those two occasions but the learned magistrate said he found a lot of the evidence about those raids to be of doubtful value but he accepted entirely the evidence of Mr. Wu Hang who said he had gone to the said premises on the 27th September, 1984 and that a woman had, inter alia, masturbated him.

3. The learned magistrate found, inter alia, the following facts, namely, that on the visits paid to the said premises on the 2nd October, 1984 various lewd acts took place with two females at least involved and also that lewd acts took place in the said premises on the 27th September, 1984, that the said premises were a vice establishment; and that on the 2nd October the 1st Appellant was in charge of the said premises; that the 2nd Appellant assisted in the management of the said premises as an usher; that on the 2nd October, 1984, the said premises were used wholly or mainly as a vice establishment and was being kept as such on a continuing basis; and that each of the Appellants knew what was going on in the said premises on the 2nd October, 1984 (emphasis is mine).

4. The words emphasized were, I think, an unnecessary finding which was possibly made ex abundanti cautela because of the word "kept" in section 139 (b) of the Crimes Ordinance and the judgment of the Court of Appeal in WONG Chi-hung and others and The Queen, Criminal Appeal 285 of 1982. But even on a charge of keeping a vice establishment the Court of Appeal in that case said:

"The first of those elements ('keeping') will usually be proved by evidence which results from the surveillance of the premises over a relatively protracted period. But it might also, in a given case, be established by proof of what has been observed upon a single occasion where the circumstances are such as to yield no other conclusion than that the conduct of the forbidden kind was not only then going on but (from the layout of the premises, documents, registers, books of account and the like) that the premises had, been so used, whether by the accused or some other person, for a considerable period prior to the police raid or whatever instrusion and brought the evidence to light".

5. The learned magistrate said he did draw certain inferences from the layout of the premises (agreed plan), the use of torches, the number and position and size of the booths, the behaviour of the hostesses and he relied on those inferences in assisting him to come to the conclusion that the said premises were being kept as a vice establishment.

6. Mr. Sanguinetti, who represented the Appellants both in the Court below and      in this Court, submitted sir grounds of appeal.

7. The first was that there was no or (no) sufficient evidence to prove, that prostitution had been established, and accordingly the said premises could not be deemed in law to have been a vice establishment.

8. Mr. Sanguinetti informed the Court that the first and fourth grounds raised important points of law which had never been taken before and he asked this Court to refer this appeal to the Court of Appeal. He referred this Court to a newspaper cutting of the Hong Kong Standard dated the 17th February, 1978 in which Briggs C.J. had referred a case of permitting a place to be used as a brothel to the Court of Appeal as it was a case of "great importance in law". And I notice that the WONG Chi-hung case was also referred by a single judge to the Court of Appeal. The Crown did not support Mr. Sanguinetti's application but in his final address Mr. Hartman for the Crown said that if this Court's interpretation of prostitution accorded with Mr. Sanguinetti's views then the Crown, too, would like this Court to refer this appeal to the Court of Appeal.

9. Mr. Sanguinetti referred to the case of The Queen and HO Chi-fai (Magistracy Appeal No. 825 of 1984) fir Sanguinetti said that when Barnes J. had delivered his judgment on the 8th February, 1985 the judge had not had the benefit of the views of Professor J. C. Smith Q.C. as reported at page 51 in the commentary to R.v. Morris-Lowe in the January 1985 issue of the Criminal Law Review. The Morris-Lowe case was a case of attempted procurement of a woman to become a common prostitute. Even had Barnes J. had the benefit of Professor Smith's views I doubt that the learned judge would have come to a different conclusion.

10. In the instant case the Court is concerned with the abstract noun "prostitution" rather than the nouns "prostitute" or "common prostitute".

11. According to the Oxford English Dictionary "prostitution" is defined as "of women: the offering of the body to indiscriminate lewdness for hire (esp. as a practice or institution)".

12. In R. v. De Munck 13 Cr. App. R. at 115 the Court of Appeal said that:

"Prostitution is proved if it be shown that a woman offers her body commonly for lewdness for payment in return".

13. Mr. Sanguinetti relies heavily on the word "commonly" in that definition, arguing that it means "habitually" or, at very least, "on more than one occasion".

14. The thrust of Mr. Sanguinetti's argument on the first ground is that the Crown should have proved acts of lewdness not only involving at least two women, but by each of those two women on more than one occasion. In other words, if ten police officers, in the same establishment and on the same day, posing as customers were to have acts of lewdness performed on them by ten different women for reward this could not found a finding that the premises were used for the purposes of prostitution. Or to take the argument even to more absurb heights, if a hundred police officers, all posing as customers in the same establishment on the same day were to have committed on them acts of lewdness by a hundred different women for reward, this would suffice nothing insofar as establishing that the premises were used for the purposes of prostitution. This is so patently absurb that I have no hesitation in rejecting that argument. In my view, the word "commonly" in de Munck's case was not intended to denote frequency but was intended to mean "indiscriminately", "promiscuously".

15. Mr. Sanguinetti made reference to a mistress. The Concise Oxford Dictionary defines a mistress as:

"Woman loved and courted by a man; woman illicitly occupying place of wife or having permanent illicit sexual relationship with man". (emphasize added.)

16. It is thus seen that a mistress is selective in the sense she limits her sexual activities to one man as opposed to being indiscriminate or promiscuous. It is not frequency of sexual acts which distinguishes a prostitute from a mistress but the fact that a mistress limits her sexual acts to one individual.

17. Inspector Abraham's evidence was that the sitting area was "completely dark". Mr. Wu Sang described the said premises as "very dark" and said he was led to a booth by a man using a torch.

18. PC7100 was asked whether he had any familiar hostess and when he replied in the negative a woman by the name Siu Wan was introduced to him. That girl committed lewd acts with that officer. The witness said that when he entered a "big dark room" it was very dark. He said he could not see the woman's face but he could only see her silhouette and clothing - it is reasonable to infer that she too could not see the officer's face - she was thus committing lewd acts on a casual basis without reference to the man as an individual. PC10907 testified the 2nd Appellant brough him to a booth - it was "very dark''. He too, was asked whether he had a familiar hostess and when he replied in the negative a woman was introduced to him as Ah Tim. Both PC7100 and PC10907 were asked by the woman introduced to them whether they would like to "double" and PC10907 said tie understood that term to mean whether he wanted to nay double-the irrestible inference was that he would be getting more than just the company of the woman.

19. Exhibit P14 is a sketch plan, not purporting in any way to be to scale. The booths, 37 of them (except for those nearest the centre of the said premises) were enclosed not on three sides but on four sides with a gap in one side to allow persons to enter the booths.

20. In my view, the learned magistrate was perfectly entitled to infer from the layout of the agreed plan (which, inter alia, indicates some sort of barrier between the open space and the booths although there is no evidence as to its height), the fact that the booth area was very dark, the use of torches to enable the customers to be guided to the booths, the behaviour of the two women, the number, position, size and design of the booths, the question addressed to the two officers as to whether they wanted "to double", that the said premises were used for the purposes of prostitution.

21. In respect of the fourth and fifth grounds, Mr. Sanguinetti submitted that the proper test of used "wholly or mainly" is whether the Crown can satisfy the Court that there was "habitual resorting" by at least two women for the purposes of prostitution. He also relied on the evidence that in the said premises the police found an electric organ, a space apparently for dancing, soft drinks, small chow, and, I think a limited liquour licence.

22. In the Attorney-General and TANG Ping-wing, Criminal Appeal No. 411 of 1981 the following passage occurs at page 4:

"In his conclusion the learned magistrate appeared to have erred in his interpretation of the phrase 'wholly or mainly'. It is implicit in his findings that he required the prosecution to adduce evidence of the nature of the user of the premises for all 24 hours in a day and to require any other user, than that of organizing or, arranging prostitution for the major portion of the period .......... In our opinion such an approach is wrong. If certain premises were used for organizing or arranging prostitution during a portion of a day say a few hours, or a number of days in a mouth it cannot be gainsaid that because the greater portion of the day or month such premises were used for legitimate business and that during those few hours or number of days such premises were rot used wholly or mainly as a vice establishment within the meaning of section 117(3). This is so because, within that portion of the day or month, that set of premises was used 'wholly or mainly' for organizing or arranging prostitution."

23. Mr. Sanguinetti suggested, in effect, that the police should have had the said premises under internal surveillance for at least two or more days.

24. In TANG Ping-wing's case (supra) at pare 6 their Lordships said:

"In our opinion it was never the intention of our legislature to provide an implied defence for any person who uses a set of premises for the purposes of prostitution by arguing that for the greater portion of every day the same set of promises were used for legitimate business. We are of the opinion that if for any period of time a set of premises is used for the purposes of prostitution, or for arranging prostitution such set of premises at that particular period of time must be regarded as a vice establishment."

25. In my opinion the words "wholly or' mainly" are intended to be descriptive of the use of the premises rather than frequency of user. The fact that the two women who committed acts of lewdness could have asked the police officers to buy them a drink or a sandwich or even to dance with them cannot be indicative that the premises were not used "wholly or mainly" by two or more women for the purposes of prostitution.

26. In my view on the 2nd October, 1984 when the two officers had lewd acts committed on them by two women the premises were then used wholly or mainly by two or more women for the purposes of prostitution and the learned magistrate was right in holding the said premises were a vice establishment.

27. The second ground of appeal was that:

"The learned magistrate erred in law in his ruling in not allowing the Defence to inspect the notebook of PC7100 and consequently the Defence was prevented and prejudiced in not been able to cross-examine the said witness on same, if thought advisable".

28. Counsel for the Crown, on the authority of Owen v. Edwards (1983) Cr. L.R. 800, conceded the magistrate erred in this respect.

29. The third ground of appeal is that insofar as the 1st Appellant is concerned there was no evidence that he was managing a vice establishment as opposed to evidence adduced that he acted as an usher and was thus assisting in the management.

30. The Crown did not seek to oppose that ground. The Crown's evidence against the 1st Appellant came from alleged admissions by the 1st Appellant to Inspector Abrahams that he was the manager of the said premises. However, the record reveals that what the 1st Appellant said to the Inspector was in Chinese and was translated into English by the Sergeant. The Sergeant, for some inexplicable reason, was not called and there was, therefore, no admissible evidence that the 1st Appellant had admitted managing the said premises.  For this reason, I quashed the conviction on the 1st Appellant and set aside, the fine imposed on him.

31. Ground five was that in all the circumstances the conviction were unsafe and unsatisfactory. Apart from the fact that I found there was no admissible evidence capable of sustaining the conviction of the 1st Appellant, I found no substance in that ground of appeal.

32. The appeal by the 2nd Appellant is dismissed.

33. Before I leave this appeal I would like to comment on the apparently unsatisfactory manner in which the prosecution was conducted in the Court below. I have already referred to the Sergeant not being called to give evidence. Also, by agreement a number of documents were produced, including Exhibit P7 but Mr. Sanguinetti expressly said he did not agree to the truth or accuracy of the contents of that exhibit. Exhibit P7 appears to be a registration card with a colour photograph which bears a good likeness of the 1st Appellant - the words "Sun Wah Night Club" appear as does the name of the 1st Appellant and the occupation, is listed as "manager (night shift)". Attached to that is a photostatic copy of the 1st Appellant's identity card. No evidence was adduced to prove how that document care about, who had filled in those particulars or at whose direction those particulars were filled in.

34. PC7100 said he was given two $100 notes the serial numbers of which he gave. He was told to use this money lie gave evidence that he paid the bill and Lot back $20 but he did not remember whether this was change for $100 or $200. No evidence was adduced as to what happened to those two notes.

35. As I said I think the prosecution was unsatisfactory conducted in the court below.

Representation: