The Queen v. Lam Kam-chi

CACC001047/1983

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

Criminal Appeal No. 1047 of 1983

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Between

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Coram: Hon. Penlington, J. in Court

Date: 13th September, 1983

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JUDGMENT

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1. This is an appeal against conviction and sentence on a charge of assisting in the management of a vice establishment, that establishment being the Golden Night Club, Hennessy Road, Wanchai. A police raid was carried out on the 11th of January 1983. The appellant, amongst others, was warned that sexual acts were taking place on the premises and they signed a police notebook acknowledging that warning.

2. On the 10th of February police officers again went to the premises. Some posed as customers and finally a raid was carried out. Two police officers gave evidence which followed the now familiar pattern of being taken to a booth which was in darkness, being asked by a hostess if they were prepared to pay "double time" for extra services, agreeing to do so and then being allowed to fondle the girls' breasts, private parts while she did the same with his penis. In each case a fee of $101 was paid.

3. The appeal against conviction is based primarily on whether the premises had been proved to be a vice establishment. It is not in dispute that the appellant was the cashier and I think that in itself must mean that he was assisting in the management of the premises. The Crown relied on the evidence of the two Police Officers as to what went on the 10th of February and if that evidence was accepted it was undoubtedly was sufficient for the magistrate to come to the conclusion that this was a vice establishment in that sexual services, albeit short of actual intercourse, were offered in return for payment.

4. The magistrate did accept that evidence. He did not accept the evidence of the two hostess who were called by the defence who denied the acts of mutual fondling. The appellant himself did not give evidence. I am satisfied that there was ample grounds upon which the magistrate could come to the conclusion that he did. The only part of his judgment which did give me perhaps a little concern was the way in which he said he had to be satisfied as how the Crown had proved its case. He put two questions to himself. The first of which was whether the Crown had proved this evidence beyond reasonable doubt. The second one was whether the evidence called for the defence had thrown any doubt on the Crown's evidence. I think those two questions should have been asked in reverse order but I am sure the magistrate was not in any doubt as to the burden of proof and he was satisfied on the evidence taken as a whole that the Crown had proved its case beyond reasonable doubt. The appeal against conviction is therefore dismissed.

5. The second ground argued at the appeal was that, as cashier, the appellant did not have any real control over the running of the premises. The well-known case of Gorman v. Standen 48 CAR 30. Here the charge was assisting in the management of the premises and I am satisfied that a cashier does so assist.

6. It was finally argued that the magistrate should not have considered the evidence of the previous warning on the 11th of January. I consider he was quite right to do so as it was evidence to rebut the usual defence that the appellant did not know what was going on in the premises.

7. Turning to. the appeal against sentence; this is a severe sentence for a person who was acting as a cashier. In majority of cases of last year it seemed that sentences have been a fine or a suspended custodial sentence. Mr. Cross produced some helpful statistics which show that there is a disparity, an unfortunate disparity I think, between sentences passed in South Kowloon and in Causeway Bay Magistracies. While each case must consider on its own merits as far as possible there should be consistency in sentences and it should not be a matter of luck as to which court you happen to appear in.

8. I have considered the decision of Mr. Justice Barnes in a similar case C. A.329/83 Tam Wing Kin and Ors. v.R. where he reduced a sentence of 9 months to one of, in effect 44 days, but there the appellant quite clearly was in bad health. Here the appellant is said to suffer from hypertension but there is no evidence that he is in fact genuinely bad health. I have to be guided by what the Court of Appeal said in Criminal Appeal No. 285 Wong Chi-hung and Ors. v.R. That appeal was dated the 15th of June, 1982.

9. The Court of Appeal there declined to lay down a tariff for similar offences but did impose sentences for keeping of 6 months and indicated if the offence showed signs of increase, or even if it showed no reduction, more substantial sentence would have to be considered. I am satisfied from the figures produced that in fact there has not been any reduction and indeed there has been if anything an increase. There is in this case no evidence of very young persons being involved and I have no doubt that the hostess concerned were sufficiently mature and knew perfectly what they were doing. Nevertheless this type of offence is on the increase. Fines seem to have proved ineffective and having in mind the profits which made in these establishments must make from the charges paid, suspended sentences, unless there are exceptional circumstances, are not appropriate. Is however a sentence of 6 months' imprisonment too severe for a man of the appellant's age 58, his lack of previous convictions and the fact that he was employed only as a cashier. The evidence was that he has been employed in the premises since 1980. He was warned, quite properly, on the 9th of January about what was going on. I think the cashier in this establishment is by no means an unimportant figure. I think it is a substantial part of the management of these operations. Taking all those factors into account I am unable to see that the sentence passed was excessive as to justify my interference. This is a severe sentence but on the facts that I have before me and on the statistics as to the number of these offences of which people have been convicted I think substantial sentences of immediate imprisonment may be the only way in which there can be at least a reduction of these establishments. The appeal against sentence is therefore also dismissed.

Representation:

I.G. Cross, Counsel for the Crown.

A. Lau (Howell & Lo) for the Appellant.