Fan Kin-wah and Others v. The Queen
Read the full judgment text of CACC 472/1982 on BabelCite. This Court of Appeal judgment was delivered on 1 October 1982.
1. The first appellant was convicted of keeping a disorderly house contrary to common law. The second and third appellants were convicted of aiding and abetting the keeping of a disorderly house, while the fourth appellant was convicted of assisting in the keeping of a disorderly house.
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CACC000472/1982 KEEPING A DISORDERLY HOUSE - AIDING AND ABETTING SUCH KEEPING - FORM OF CHARGE - WHETHER AVERHENT OF ONE DATE SUFFICIENT - PROOF OF PERSISTENT OR HABITUAL USER - ADMISSIBILITY OF EVIDENCE OF PRIOR USER IN RESPECT OF CONDUCT IMMEDIATELY PRIOR TO PERIOD REFERRED TO IN CHARGE - PROOF OF AIDING AND ABETTING - CONTENTS OF STATEMENT OF FINDING ON APPEAL FROM MAGISTRATE'S COURT
BETWEEN
__________ Coram: Hooper, J. Date: 1 October 1982 __________ JUDGMENT __________ 1. The first appellant was convicted of keeping a disorderly house contrary to common law. The second and third appellants were convicted of aiding and abetting the keeping of a disorderly house, while the fourth appellant was convicted of assisting in the keeping of a disorderly house. 2. The charges in respect of which the first, second and third appellants were convicted alleged that each committed the offence on the 7th November, 1981 and on other days between that date and the 9th December, 1981 at the Chee Kong Association Ltd., 3rd floor, 535, Shanghai Street, Kowloon. 3. The charge against the fourth appellant alleged that she, on the 9th December, 1981 at (the same address) "did aid and abet (the first appellant) in keeping a disorderly house at the said premises". The statement of findings of the magistrate contained five short paragraphs. The first paragraph dealt with the charges against each appellant with specific reference to the dates referred to in these charges. 4. The second paragraph dealt with the evidence which was called by the prosecution' in these terms -
5. That paragraph does not contain any finding of primary facts. It is merely a statement of the brief history of the case. 6. The first finding of fact that appears in the statement of findings appears in the third paragraph which is in the following terms -
7. So the first finding of fact is that the behaviour of the fourth appellant (D4) described by P.W.1 took place. It is reasonable to assume that the behaviour he was referring to was that specifically referred to by the magistrate in the second paragraph above, since that was the evidence to which he had specifically referred. 8. It is also reasonable to assume that his acceptance of the evidence of P.W.5, P.W.6 and P.W.7 in respect of the 7th and 25th November respectively, was that referred to in the second paragraph. 9. So these were his primary findings of fact that similar services were provided by female employees of the Association on 7th November and the same type of activity occurred on the 25th November. 10. It is also reasonable to assume that it is from these primary findings of fact that he went on to draw the inference that there was a persistent keeping of a disorderly house over the period 7th November to 9th December. 11. In the fourth and fifth paragraphs the magistrate then turns his attention to the roles of the respective appellants-
12. It appears that the magistrate found as primary fact that the first appellant was present at the premises on the 7th November and 9th December and from that fact and other evidence to which he does not specifically in his findings refer that the first appellant was in charge of the premises. 13. It also appears that he was satisfied as a primary fact that both the first appellant and third appellant were present in the premises on the 7th November and 9th December, but did not make any finding relating to them in respect of 25th November. 14. He nevertheless from the fact that they were each present at the beginning and end of that period inferred that they were involved in the same capacities throughout. 15. He found that the second appellant had been identified as the cashier on the 9th December and the third appellant as usher and that their roles were sufficiently connected with the management of the premises to implicate them as aiders and abettors 16. He made no specific finding of fact in relation to the fourth appellant in his statement of findings, apart from the finding that "the behavicur of D4 described by him (P.W.1) took place on the 9th December". 17. It is a source of some surprise to me to find that the majority of magistrates' statement of findings that I have seen recently, do not specifically set out all the findings of fact upon which the convictions have been based. 18. In my view a magistrate should at least set out in the statement of findings all the essential primary findings of fact from which guilt has been inferred. Guidance has been given on this matter by the Full Court in Kowloon Motor Bus Company (1933)Ltd. and Another v. KONG Tung(1) . 19. Further, the words of Mills-Owens, J. in LAM Tin-chung v. The Queen (2) should be noted -
20. The first two grounds of appeal are as follows -
21. I have been addressed at some length on the subject of the alleged discrepancies, but cannot say that I have been impressed with the arguments put forward on behalf of the appellants on this subject. 22. The alleged discrepancies, if they are discrepancies at all, were not such that one would have expected the magistrate to place too much significance upon them. Looking at the record of evidence, I have no reason to doubt the correctness of the magistrate's findings of fact. As I have not had the advantage, which the magistrate had, of seeing the witnesses giving evidence, I am not prepared to interfere with his findings of fact. It is clear from the statement of findings that the magistrate was on his guard in accepting the evidence of these witnesses and, in particular, the first prosecution witness. He clearly regarded the evidence o￡ the third prosecution witness to be of little value. 23. The third ground of appeal is that the magistrate erred in his finding by inferring that the first and third appellants were involved in "the same capacities throughout" the period between 7th November and 9th December, 1981 as such an inference was not supported by any sufficient evidence and was not the only inference that could be drawn from the evidence. 24. This ground of appeal attacks the findings in paragraph 4 of the statement of findings to which I have already referred. 25. Now, so far as the first appellant is concerned it appears to me to be clear, in paragraph 4, that the magistrate accepted the uncontradicted testimony of the prosecution witnesses P.W.2 and P.W.4 that on the 9th December the first appellant admitted at the scene being the manager and in charge of the premises in question, and that he accepted the evidence of P.W.6 that on the 7th November the first appellant was the manager. He inferred from this evidence that the first appellant was involved in the same capacity throughout the period from the 7th November to the 9th December, 1981. It seems to me that the magistrate could have been described as lacking in common-sense if he had come to any other conclusion. But quite apart from that, there was evidence (uncontradicted by any other testimony) that the first appellant had made a statement under caution, Exhibit P.7, in which he said on the 9th December -
26. The phrase "I always advise" certainly is indicative of the holding of the position of manager or "person in charge" for a duration of time. 27. In the circumstances, I do not think the magistrate erred in drawing that inference. 28. With regard to his finding that the third appellant was an usher on the 9th December and that the second appellant was the cashier, he was clearly mistaken. It is apparent from an examination of the record of evidence that P.W.1, P.W.2 and P.W.4 all gave evidence that it was the third appellant who was the cashier and that it was the second appellant who was the usher. P.W.5 and P.W.6 gave evidence that the third appellant was the cashier on the 7th November. Assuming that the magistrate had meant to say that it was the third appellant he found to be the cashier on the 7th November and the 9th December, I think it would have been the proper inference for him to draw that the third appellant was involved in the same capacity throughout. P.W.3 gave evidence of taking a statement from the third appellant, but it seems that no weight was placed upon this or any other part of P.W.3's evidence because the magistrate said on the record, immediately after this witness' evidence "Evidence of witness is particularly evasive and of little assistance". 29. The reference to the third appellant as the second appellant and vice versa could only have been a mistake on the part of the magistrate, because there was absolutely no evidence upon which he could have reached the conclusion that he did. All the uncontradicted evidence pointed to the vice versa situation. One thing that remains clear, and that is that the magistrate was satisfied that it had been proved on the prosecution evidence that both the second appellant and the third appellant were involved inn the running of the premises. He just got their roles muddled, but he went onto say that he found their roles to be sufficiently connected with the management of the premises to implicate them as aiders and abettors. In other words, it, didn't matter which of the two roles they occupied, each was sufficiently connected to render himself guilty as an aider and abettor. I do not think that anything turns upon what was an obvious mistake. 30. The main ground of appeal in this case is the fourth ground which is in the following terms -
31. In support of this ground, particular reliance is placed by the appellants on the judgment of Liu, J. in CHAN Man v. The Queen (3). 32. This case was brought to the attention of the magistrate at the close of the prosecution case in the course of & submission of no case to answer. It is a, source of some surprise to me that no reference was made to it in the magistrate's statement of findings. However, it is apparent from the statement of findings that he was aware of the necessity for the Crown to prove 'persistent user', because he found as a fact from the evidence of P.W.1, P.W.5, P.w.6 and P.W.7 that there was a persistent keeping of a disorderly house over the period 7th November to 9th December. In my view that was a finding that was amply justified by the evidence and by the findings in paragraph 2 of the statement of findings set out above. 33. Each of the officers had given evidence of entering the premises in question and being led to a darkened area where for the payment of money he had received the services of a female who sat with him and touched his lower part, an act which was described in relation to all three dates as masturbation. On each occasion the officer was asked if he wanted a "big" or "double" hour. That evidence was totally uncontradicted. 34. The finding that there was a persistent keeping of a disorderly house over the period from the 7th November to the 9th 'December cannot therefore be disturbed. 35. It is my view, a sensible approach for the magistrate to first consider the question whether it had been proved beyond reasonable doubt that a disorderly house had been kept during the period referred to in the charge, and if the answer to this question is "Yes" he can then consider the evidence to see if it has been established to the necessary degree of certainty that any of the accused has been proved to be a keeper or that his or her relationship to the keeper is sufficient to justify his or her conviction as an aider abettor, counsellor, or procuror. 36. This is the view taken by Leonard, J. (as he then was) in Reg. v. LEUNG Kwan-fu and Ors. (4) when he said -
37. I respectfully agree with that' view -arid` adopt it for the purposes of this appeal. 38. Was the magistrate justified in convicting the first appellant as a keeper? In my view He clearly was. It was established to his satisfaction by evidence uncontradicted by any other testimony that the first appellant was manager and in charge on the 7th November and the 9th December. I have already held that the magistrate was justified in drawing the inference that was involved in this capacity throughout lie clearly knew that immoral acts were going on in the premises for otherwise there would have been no need for him to "always advise the waitresses not to do immoral acts with male customers inside the booths". It is my view there was sufficient evidence to convict the first appellant as a keeper of this disorderly house as stated in the charge and I therefore confirm his conviction and dismiss his appeal. 39. I turn now to the case of the second and third appellants. When it is sought to prove a man guilty of a criminal offence as an alder and abettor, it must at least be shown that he knew the offence was being committed and that he was present at some time during the commission of the crime and with the intention of doing so he assisted in its commission or encouraged its commission. 40. The uncontradicted evidence in this case was that the second appellant was an usher on the 9th December and that on that day he admitted that he took charge of giving bills to customers. There was uncontradicted evidence that the second appellant was the person in charge of the hall on the 7th November and that he was also present on the 25th November as a captain. It seems tome that the magistrate's finding of guilt in respect of the second appellant is amply supported by the uncontradicted evidence of these police officers. It might be possible to argue that he was described at different times as a "waiter", a” man in charge of the hall" and as a "captain". It seems to me that this evidence is not mutually exclusive and that it does not detract from the finding of guilt. 41. The uncontradicted evidence of the police officers, I mentioned earlier, is that the third appellant was on the 7th November and the 9th December the cashier at the premises. Indeed, P .W.5, whose evidence related to the 7th November called him "the clock man cashier". It would in the circumstances be an abuse of common-sense to hold that this man did not know what was going on and did not intend to assist in the commission of the offence. I find that there is ample evidence to support the magistrate's finding of guilt in respect of the third appellant. 42. The appeal of the fourth appellant is, at first sight, on stronger ground. The charge as framed against her was not amended at the outset (as in the case of the other three appellants) and did not therefore include the words "on the 7th day of November 1981 and on other days between that date and the 9th day of December, 1981". 43. Her charge was framed in' the' following way -
44. It can be seen at once that this refers to her activity on one day, namely, the 9th December 1981. There was no evidence to the effect that she had been present on any of the other occasions described by the police officers. 45. It is not a ground of appeal that the charge against the fourth appellant was defective. The fifth ground of appeal which specifically relates to the appeal of this appellant is that the magistrate "erred in finding that the fourth appellant assisted in the management of a disorderly house and there was no or no sufficient evidence to show that she assisted any one in taking any active part in the running of Chee Kong Association Ltd. as a business". 46. So this ground o￡ appeal is concerned with the evidence and not the form of the charge. 47. Now it is clear that evidence may be led of acts before the period referred to in the charge to show that what happened during the period referred to in the charge was merely a continuation of a prior user, R. v. Brady. R. v, Ram(5) . 48. The period during which "persistent" or "habitual" user must be proved to ground the conviction may in certain circumstances be as short as one day. R. v. Harrison(6) . 49. The circumstances will exist when the facts proved all go to show together "cumulatively" that the house was used habitually for that purpose. 50. Since it may be sufficient in the circumstances of the case to prove what took place on one night only, and since it is permissible to consider evidence relating to acts before that period to show that happened during that period as such was merely a continuation of a prior user, I cannot see that there is anything defective in the charge against the fourth appellant, although I think it would have been better if all four appellants had simply been charged with keeping a disorderly house and for the charge to be framed in relation to a period which encompassed all the dates in respect of which the prosecution, could prove such user. 51. The magistrate found, and rightly found in my opinion, that the offence of keeping a disorderly house had been committed throughout the period of the charge against the first appellant. That evidence is all relevant to the charge against the fourth appellant. 52. I appreciate that a contrary view is expressed in CHAN Man v. R.(3) , but with the greatest respect to the judge who expressed that view and for the reasons which I have already stated, it does appear to me that his view is against the weight of opinion of the two appellate cases cited above. Furthermore, in a more recent case concerning an appeal from a conviction under section 139 of the Crimes Ordinance in respect of keeping a vice establishment, McMullin, J.A. (as he then was) in our own Court of Appeal in WONG Chi-hung and Ors. v. R. (7) made some pertinent comments in relation to the way of proving such common law offences as the keeping of a brothel or a disorderly house. He said-
53. In my view the balance of authority in the appellate courts is to the effect that in certain circumstances a charge of keeping a disorderly house on but a single date will not be defective and may be prosecuted successfully if there is evidence relating to a period prior to that day which shows that the user on the date set out in the charge is a continuation of a prior user and goes to prove the ingredients of persistent or habitual user. 54. It is clear from paragraph 3 of his statement of findings that the magistrate was left in no doubt that the behaviour of the fourth appellant described by the police officer took place. The police officer had said -
55. In my view the irresistible inference to be drawn from this evidence is that the fourth appellant was fully aware of the nature of the services habitually provided in this establishment and that she was helping to provide these services in no small measure and also to make sure that payment was received for these "double hour" services. 56. In the circumstances, I am satisfied that there was ample evidence to support the conviction of the fourth appellant. 57. The sixth ground of appeal was a general ground that the conviction of the appellants was unsafe and unsatisfactory. For the reasons which I have given above, I take an opposite view and I confirm the conviction of all four appellants and dismiss their appeals against conviction.
(1) [1973] H.K.L.R. 198 (2) [1970] H.K.L.R. 105 (3) Crim. App. No. 1062/80 (4) [1977] H.K.L.R. 175 at 180 (5) [1964] 3 ALL E.R. 616 (C.C.A.) (6) [1887] N.S.W.R. 56 (3) Crim. App, No. 1062/80 (6) [1887] N.S.W.R. 56 (7) Crim. App. No. 285/82 Representation: Mr. Ching Y. Wong (Wing-Sum Lo & Co.) for all four appellants Mr. Jenkyn-Jones, Crown Counsel for Crown/respondent |