The Attorney General v. Tang Ping-wing
Read the full judgment text of CACC 411/1981 on BabelCite. This Court of Appeal judgment.
1. On the 12th June, 1980 the respondent was charged with two offences under Section 139(b) of the Crime Ordinance Cap. 200. The two charges were that the respondent on the days of the 12th and the 21st February, 1980 respectively, at the premises of the New York Escort Co. at 121 Woosung Street, 1st Floor, Kowloon, did assist in the management of the said premises which was kept as a vice establishment.
Cited by 6 cases
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CACC000411/1981 Meaning of 'vice establishment' Section 117(3), Crime Ordinance Cap 200 - evidence showed a pattern that premises used for arranging prostitution during evening hours. Sufficient evidence to show premises used wholly or mainly for such purpose even if the premises was used during a portion of the day. The prosecution has established a prima facie case.
Coram: McMullin, V.-P., Li, J.A. and Zimmern, J. Date of Judgment: 14th August, 1981 ----------------- JUDGMENT ----------------- Li, J.A.: 1. On the 12th June, 1980 the respondent was charged with two offences under Section 139(b) of the Crime Ordinance Cap. 200. The two charges were that the respondent on the days of the 12th and the 21st February, 1980 respectively, at the premises of the New York Escort Co. at 121 Woosung Street, 1st Floor, Kowloon, did assist in the management of the said premises which was kept as a vice establishment. 2. The two summonses were heard together on the 12th June, 1980. Section 139(b) of Cap. 200 provides that:-
3. At the conclusion of the prosecution's case the learned magistrate found that on the evidence adduced before him there was no case for the respondent to answer and accordingly dismissed the summonses. The Attorney General appeals by way of case stated. 4. Since one of the ingredients of the offence is the allegation of the existence of a vice establishment, it is convenient at this stage to find out what constitutes a vice establishment within the meaning of the Crimes Ordinance. Section 117(3) of the said Ordinance provides that:-
As far as we understand, the prosecution in these summonses rely on paragraph (b) of sub-section (3) of Section 117 to attempt to establish that the premises named in the two charges were a vice establishment. 5. The facts as found by the learned magistrate are set out in his case stated. On the evening of the 4th and 6th February, 1980, respectively, the police kept observation of the said premises of the New York Escort Company. There was a distinct pattern. A Chinese male would enter the said premises. He would be observed to leave with a Chinese female who would lead him to the nearby Sun Wah Apartment House. The Chinese male would leave about thirty minutes after their entry into the Sun Wah Apartment House. The Chinese female would then return from Sun Wah Apartment House to the New York Escort Company premises. 6. Then on each of the respective dates, namely the 5th of February and the 7th February the police kept similar observation upon the premises at day-time. On both occasions the premises of the New York Escort Company were in darkness, signboards unlit, and door locked. There was no one in the premises at all. 7. On the 12th February, 1980 a police decoy was sent, namely Police Constable 11804, with marked money. He arrived at 9:45 p.m. at the New York Escort Company premises. He was greeted by the respondent who inquired if he, the Police Constable, had any familiar girl. Then the respondent introduced a female CHEUNG Yuk-ping and asked for the service charge of $42. The Police Constable gave the marked $50 note and the girl took it to the counter. The girl then led the Police Constable to the nearby Yung Lung Apartment House. She quickly undressed and suggested that they had sexual intercourse. The Police Constable undressed slowly. By 10:05 p.m. the police party arrived at the premises of the New York Escort Company and found the respondent behind the counter. From there they went to the Yung Lung Apartment and found the Police Constable and CHEUNG inside a room in that Apartment House. The whole party then returned to the New York Escort Company premises. The police found the marked note in the possession of the respondent. The respondent was arrested. The respondent said that he was not in charge of the premises but was only a worker or employee. He was granted police bail. 8. On the 21st February, 1980 another Police Constable 16960 was sent to the same premises with similar instructions. He was greeted by the respondent and introduced to a Chinese female KWOK Yuen-yee. The constable paid his marked money. KWOK took him to Sun Wah Villa Apartment House. Inside that room of Sun Wah Villa Apartment House KWOK asked the constable for $150 for love making and started to undress. At 10:45 p.m. the police arrived at the New York Escort Company premises and found the respondent at the counter. The party went to the Sun Wah Villa Apartment House and found the Police Constable and KWOK in the same room. They returned to the New York Escort Company premises and found the Chinese female CHEUNG Yuk-ping who entertained P.C. 11804 on the 12th of February present in the company premises. They also found the respondent was in possession of the marked money which was paid by Police Constable 16960 and the key to the main door of the premises. When arrested the respondent's answer was that he was merely an usher and a worker. Hence the two summonses. 9. In holding that there was no case to answer the learned magistrate found that he was not entitled on the facts presented to him to hold nor was he entitled to infer from those facts that in reality the main use of the premises was such as to bring it within the definition of a vice establishment. He also found that in as much as the respondent was charged with assisting in the management of premises kept as a vice establishment it was necessary for the appellant to adduce sufficient evidence to prove that he (the respondent):-
The learned magistrate formed the opinion that the words "wholly or mainly" in Section 117(3) required the prosecution to prove "that at least the main use of the premises was for the purpose of organizing or arranging prostitution or by two or more women practising prostitution". 10. In his conclusion the learned magistrate appeared to have erred in his interpretation of the phrase "wholly or mainly". It is implicit in his finding that he required the prosecution to adduce evidence as to the nature of the user of the premises for all 24 hours in a day and to negative any other user than that of organising or arranging prostitution for the major portion of that period. Otherwise he would not have held that there was no case for the respondent to answer in view of his own finding of facts. In our opinion such an approach is wrong. If certain premises were used for organising or arranging prostitution during a portion of a day, say a few hours, or a number of days in a month it cannot be gainsaid that because for 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 not 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. 11. Our attention has been drawn to the cases of:
We do not find them to be of great assistance. Of these three cases perhaps the nearest to the point is that of Pilkington. In that case a child of two years old was found in a publican's kitchen during opening hours. That kitchen was equipped for the purposes of drinking. opening hours. That kitchen was equipped for the purposes of drinking. During closing hours, however, it was used for domestic purposes. Subsection (5) of section 120 of the Children's Act 1908 provides that in this section:-
The justices found that the kitchen was exclusively used for trade purposes during certain portions of the day and held that the user of it during certain portions of day for domestic purposes did not preclude them from holding that the same room during other portions of the day could be mainly used for the sale and consumption of intoxicating liquor within the meaning of the section. Accordingly they convicted the appellant. The appellant appealed. 12. The appeal was dismissed by all three judges. In his short judgment Rowlatt, J. said:-
The judgment of Mr. Justice Rowlatt appears to be against the proposition of splitting up the time of the day for the purposes of determining whether a set of premises were used for any particular purpose. However, the learned judge referred only to the opening hours of a licensed house. In fact the learned judge was saying that provided a child was found in the premises during opening hours it will not avail the publican to argue that during the closing hours that part of the premises was used for domestic purposes only. 13. In our opinion it is 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 premises were used for legitimate business. 14. 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. 15. We now turn to the learned magistrate's findings of facts. We are of the opinion that the learned magistrate should have had no difficulty in finding a prima facie case that the premises of the New York Escort Company were used wholly or mainly for, or in connection with, the organising or arranging of prostitution. We refer in particular to his findings in paragraph 4(b) of the case stated. He found what was set out in that paragraph fell in the form of a "distinct pattern". It was not a solitary occurrence. He also found no other business being conducted in the same set of premises during the day. On the face of it the New York Escort Company was running an escort service. That being so, it is surprising that there should be no escort service provided in daytime. The so-called escort services always started and finished in an apartment house. Further the police officer each paid $42 for the services on each occasion. 16. There was no evidence that either paid for the room they occupied with their respective escorts. Thus the $42 appeared to include room charges. At the end of the prosecution case there was no evidence of any other user than that of customers picking up females and bringing them to apartment houses and within a matter of half an hour the female returning to the premises. For these reasons we are of the opinion that it does not require any stretch of imagination to infer that the business conducted in the premises of the New York Escort Company was in connection with prostitution. We find little difficulty in coming to the conclusion that at the end of the prosecution case there was at least prima facie evidence that the premises were used wholly or mainly for, or in connection with the organizing or arranging of prostitution. 17. As to the evidence tending to show guilty knowledge on the part of respondent, there is evidence of the "distinct pattern" and the two incidents that happened on the 12th and the 21st of February last year. The respondent admitted he worked in the premises. The two incidents showed that the respondent was the person who received the fees for introducing the girls to the two police constables. He was the only person alleged to have been there receiving money. Even if he claimed that he was merely an usher or employee of the establishment there was every indication that he was assisting in the management of that establishment. He denied any guilty knowledge. Despite his denial it will be naive to suggest that he had no knowledge of what the girl was doing after the event on the 12th February, 1980 and after he was granted police bail. 18. The questions of law framed for the opinion of this court are as follows:-
19. To all these questions we must return the answer "no". Accordingly the appeal must be allowed and the case be remitted to the learned magistrate with our direction to resume the hearing on the basis that the respondent has a case to answer. 20. We understand the respondent has since disappeared and that he was served by way of substituted service as ordered by another division of this court. Unfortunately this is the problem for the prosecution. The hearing will be resumed as soon as practicable after the respondent is located and served with notice of the resumed hearing.
Representation: Mr. J. Daw, Crown Counsel for Crown/Applicant No appearance of Defendant/Respondent. |
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