The Queen v. Lau Wai-kin

HCMA000787/1985

HEADNOTE

VICE ESTABLISHMENT - no sufficient facts proved from one visit on which to draw the inference of persistent user-that premises were kept as a vice establishment therefore not proved - conviction quashed.

IN THE SUPREME COURT OF HONG KONG

APPELIATE JURISDICTION

MAGISTRACY APPEAL NO.787 OF 1985

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BETWEEN

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Coram: Deputy Judge Ryan in Court

Date of Hearing: 6th November, 1985

Date of Delivery of Judgment: 18th November, 1985

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JUDGMENT

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1. The appellant was convicted on a charge of managing a vice establishment contrary to Section 139(b) of the Crimes Ordinance Cap.200.

2. On the 19th June 1985 at 8:00 p.m. P.C.20419 (PW1) went to Wong Kung Siu Chuk Villa at 502/4 Nathan Road. He had with him five marked $100 notes. He was in plain clothes. The door to the villa was opened by the appellant who asked PW1 whether he was looking for a hostess and whether he preferred local girls or foreigners. PW1 said he preferred foreigners and was advvised they were more expensive the fee being $500. The appellant escorted PW1 to Room 102 which contained a bed with a dressing table on which were two contraceptives sealed in sachets. A South American woman was duly introduced to PW1 in the room by the appellant, the appellant left and the woman and PW1 involved in sexual activities but short of full sexual intercourse. These activities were cut short by the appellant advising PW1 of a pending police raid. He took the $500 in marked notes from PW1 and asked him to wait inside Room 107. PW1 revealed his identity following the police raid. PC 11568 (PW2) gave largely similar evidence relating to his visit to the villa at 8-10 p.m. He was shown to R.103 and subsequently involved in sexual activity with a Chinese girl the fee being $300 but this had not been paid at the time of the police raid.

3. WPC 18420 (PW3) gave evidence of having recovered the five marked $100 notes from a drawer in the counter. She also recovered the two pairs of contraceptives from Rooms 102 and 103 and gave evidence of finding contraceptives available in every bedroom in the Villa. The sketch plan produced showed six bedrooms with toilet facilities attached one bedroom behind the counter, a reception area and a storeroom,

4. There is no dispute that the appellant was the manager of the Villa on the evening of the 19th June, 1985.

5. The magistrate in his statement of findings set out the evidence in detail and concluded by accepting the testimony of the three police officers and rejecting the evidence of the defendant where it contradicted that of the police officers. The defendant had denied the police officers evidence and had claimed to be operating an apartment house letting out rooms. The magistrate then found "That the Crown had proved all the ingredients of the offence"

6. The grounds of the appeal are that there was no or no sufficient evidence that the premises were kept as a vice establishment, that the magistrate failed to consider sand to make a specific finding to that effect and that if there was such a finding he failed to give adequate reasons for so finding.

7. It is true that the magistrates findings are very brief. It certainly would have been helpful if he had identified those parts of the evidence upon which he relied to find that the premises were used wholly or mainly for or in conneetion with the organising or arranging of prostitution and to find that the premises were kept as a vice establishment. Nevertheless I am satisfied trhat it is implicit in his finding that all of the ingredients of the offence had been proved that he had directed his mind to these two important matters.

8. The first point taken is that the evidence did not support a finding that the premises were used wholly or mainly for or in connection with the organising or arranging of prostitution as required under S.117(3) of the Crimes Ordinance.

9. At the time of the raid the only occupants were a Chinese male who was in a room with the South American woman who had previously entertained PW1, a Chinese woman who had attended to PW2, the two police officers and the defendant. They were all there in connection with prostitution activities. There were no other guests in any of the other rooms. In each room there was a sachet containing two contraceptives clearly visible and available for use. When the police officers each rang the bell the defendant opened the door, immediately enquired if they wanted a girl and then proceeded to arrange for a prostitute. Counsel for the defendant referred me to Queen V. CHONG SUNG HIN Mag. App.498/85 but that case can be distinguished on its own facts in that the apartment house contained 10 to 20 rooms some of which were occupieied by legitimate guests. There were only two or three prostitutes working at the apartment house and the customers had asked for their services. The learned judge found on those facts that the apartment house could not be said to be used "wholly or mainly".

10. On the facts in this case the magistracte was perfectly entitled to come to the conclusion that the premises were then being used wholly or mainly for or in connection with the organising or arranging of prostitution.

11. The second point taken is that there is no evidence to justify a finding that the premises were kept as a vice establishment.

12. In Wong Chi Hung v. The Queen Cr. App.1081 of 1981 at Pg.6 McMULIIN VC in considering S.139 said:

"What the Crown must show in order to bring home a charge under S. 139(a) or (b) is firstly that the premises were being kept in that manner and secondly that the defendant was ...... seen to be managing ...... the premises. The first of those elements requires evidence sufficient to show a pattern of main user which will usually involve some degree of persistence in time beyond what would be supplied by evidence of a single transaction; the second need not. "

At Pg. 7 the learned Vice President went on to say:

"The first of those elements no doubt will usually be proved by evidence which results from 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 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 considerably period prior to the police raid or whatever intervention had brought the evidence to light. "

13. The counsel for the defenced very properly concedes that there are occasions when evidence obtained from a single visit might suffice to establish continuing user but argues that this is not one of those occasions.

14. There were two police officers involved on the evening of the 19th June 1985 but they entered the premises within 10 minutes of one another. There had been no earlier surveillance of the premises or earlier visits. The Villa was a small apartment house and certainly there was nothing in the general layout which would have prevented rooms from being let for non professional activities. There was no evidence from the two women of previous user of the premises for prostitution nor any evidence from the Chinese male who was found there at the time of the raid as to whether he had previously used the premises to obtain the service of prostitutes. There were no books of account records or the like to assist in a finding of a pattern of persistent user.

15. In my judgment there were no sufficient facts establishing circumstances such as to yield no other conclusion than that the organising of prostitution had been going on in the premises for a considerable period prior to the raid. The magistrate was therefore wrong to find that the premises were kept as a vice establishment.

16. For these reasons the appeal is allowed and the conviction is quashed.

Representation:

Mr. Andrew Chung, Crown Counsel, for the respondent

Mr. Cheng Huan, instructed by Michael O'Cock & Co., for the appellant