Leung Sum v. The Queen

CACC000410/1977

Coram: Briggs, C.J.

Date of Judgment: 17th June, 1977.

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JUDGMENT

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1. The appellant was charged with two charges which were numbered 'A' and 'C' in the court below. Charge A was selling tobacco without a licence contrary to section 17(3) of the Dutiable Commodities Ordinance, and Charge C was keeping a place of public entertainment without a licence contrary to section 4(1) and (2) of the Places of Public Entertainment Ordinance.

2. At the end of the trial, the appellant pleaded guilty to Charge A and was sentenced to four months' imprisonment suspended for two years. The appellant was found guilty of Charge C and was fined $2,000. The appellant appeals against his sentence on Charge A and his conviction on Charge C. I will deal with Charge C first.

3. The evidence showed that on the 25th January, 1977 the appellant was running what could be called a 'night club' known as the "Hong Kong Artist Club" in the basement of 21 Kimberley Road, Kowloon. On that date, the police under a warrant issued under the Protection of Women and Juveniles Ordinance raided the Club. On entering the premises, it was seen that there were several people sitting at small tables who were being served with refreshments. In the middle of the room there was a 4-Piece band accompanying a woman singer. Various inquiries were made and the appellant was eventually arrested.

4. The Hong Kong Artist Club was registered as a club under the Ordinance. The magistrate, in coming to his conclusion that the evidence showed that the appellant was violating the provisions of the Public Entertainment Ordinance, relied on evidence which was clearly hearsay. For example, there was evidence from police witnesses that they had asked most of the people who were present in the room at the time whether they were members of the Club. Some persons admitted that they were not members. Other persons present told the police officers that they were then not in possession of membership cards. And others again said that they were tourists from Taiwan and Japan. The inference, of course, is that a significant number of the persons present were not members of the Club but were ordinary private citizens who were making use of the Club's facilities. However, no direct evidence was given by any such person to that effect before the magistrate. Nor were the rules of the Club exhibited to the court.

5. Two persons were found on the premises who were described as a scantily dressed girl and a man with a gorilla suit. The man gave evidence and said that he was there for an audition. There was no suggestion that he was performing on that occasion.

6. The evidence all referred to the date, the 25th January, 1977. It is settled law that to make out a charge of keeping a place of public entertainment without a licence some continuity of conduct must be shown. It must be shown that the conduct complained of has occurred on more than one occasion. There was no such evidence here. It is true that in the particulars of the charge the word 'using' is used but I think those particulars clearly refer to the charge itself which is in these words "Keeping a place of public entertainment without a licence." For these reasons, therefore, I allowed the appeal and set aside the conviction on Charge C.

7. As to Charge A, I allowed the appeal against sentence to the extent that I substituted a sentence of a fine of $500 in place of the sentence imposed by the magistrate. Mr. Huggins, who appeared for the appellant, drew my attention to the case of Curran ⁽¹⁾, Mackenna, J., in that case, in giving judgment stated:-

"As a general rule it is undesirable that a first sentence of immediate imprisonment should be very long, disproportionate to the gravity of the offence, and imposed, as this sentence was, for reasons of general deterrence, that is as a warning to others. The length of a first sentence is more reasonably determined by considerations of individual deterrence;"

In the present case, this was a first offence. I agree with the words of Mackenna, J. and for that reason I allowed the appeal to the extent of substituting a fine for the term of imprisonment passed by the magistrate as I have said.

Representation:

A. Huggins (T.Y. Lee & Co.) for appellant.

Cahill for crown.

(1) (1973) C.A.R. 945.