Chan Man v. The Queen
Read the full judgment text of CACC 1062/1980 on BabelCite. This Court of Appeal judgment.
1. Before the learned magistrate, the appellant stood charged with the following offence:
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CACC001062/1980 Appellant charged with keeping a disorderly house, contrary to Common Law, on a certain date ______ Held, an element of persistent user is an essential ingredient of the charge and the charge is therefore invalid.
----------------- Coram: Liu, J. in Court. Date of Judgment: 3rd February, 1981 ----------------- JUDGMENT ----------------- 1. Before the learned magistrate, the appellant stood charged with the following offence:
2. The prosecution adduced evidence that on the 22nd August, last year, paying guests were entertained in the Sum Sum Association premises by provocative exhibitions of undulating human forms calculated to induce libidinous desires. Further evidence was led of similar performances in the same premises on the 9th July, 1980. After the raid in the evening on the day specified in the charge, the appellant acknowledged to the officers his position of manager in charge of the Sum Sum Association. The next day, he gave a statement to the police confirming his management of the premises in which striptease shows were regularly staged each night since February or March, 1977 by nude dancers "following the music and light" and doing "some action of indecent nature". Reference was made in this statement to a "membership" fee of $10. At the trial, officers also testified to the indifference with which their applications for membership were processed. 3. The Amended Substituted Grounds of Appeal were four. Save for ground 1, I was and remain unimpressed by the rest. I was forewarned of the likely difficulties caused to the administration of justice in magistrates' courts by the decisions in CHAN Man and others v. R.(1) and LEUNG Kwong-fu and others v. R.(2). They are decisions on the factual issue as to whether an establishment is run as a "private club" or an "open house". Evidence of admission of "members" in the former case was scanty. The process of applying for "membership" in the latter case was described in all its details. Moreover, the former case was referred to but was not followed in the latter decision. Any attempted reversal to the view expressed in the former case would seem to run counter to all realistic concepts. No discourtesy is intended in this judgment by not setting out the outcome of my deliberation on all the controversies canvassed at the hearing. By reason of my conclusion reached on ground 1 of the Amended Substituted Grounds of Appeal, I need journey no further and propose to confine my decision to the smallest compass. 4. Ground 1 reads as follows:
5. All essential ingredients of an offence must be so included. On the force of R. v. Brady, R. v. Ram(3), counsel for the appellant contended that the element of persistent user was an indispensable ingredient of the crime of keeping a disorderly house. Much was sought to be made by counsel for the respondent that Lord Parker, C.J. in Brady and Ram merely assumed but without deciding that persistency was essential to the Common Law offence of keeping a disorderly house. See also para. 3877 Archbold 40th ed. 6. The indictment form in para. 3884 of Archbold, 40th ed. for "Keeping a Brothel" lays great emphasis on the inclusion of a period for "persistent user". In the wealth of authorities paraded before the court, the charge invariably specified a period to reflect the cumulative nature of the offence. In WONG Choi-fung v. R.(4), Leonard, J., as he then was, set out the archaic form of indictment which contained the following phrase:
The learned judge observed:
7. In CHAN Man-shing and others v. R.(5), a case decided not on an alleged defective charge but on lack of evidence for "habitual user", Silke, J. had this to say:
8. That the element of "persistent or habitual user" must be included in the charge is deep-rooted and jealously guarded. Indeed, counsel for the respondent had not directed my attention to any form of charge or indictment which telescoped an alleged offence of "keeping" to one day. However, with tenacity Mr. Mason-Parker advanced what I would regard as an ingenious argument. Counsel relied heavily on R. v. Harrison(6), where it was held that a "keeping" offence could be supported by evidence of activities on one night. It was pressed upon me that as the word "keep" signified persistent conduct, its very inclusion in the "Particulars of Offence" would import a cumulative element into the charge and the period of habitual user might legitimately be supplemented by further particulars or evidence. Counsel urged that even if persistent user had been a prerequisite, the present charge couched in terms comprising the word "keep" would still have been a valid charge for a cumulative offence and that as the appellant had throughout been guilty of a habitual use of the Sum Sum Association premises, he must have been likewise guilty of it on the date particularized, the 22nd August, 1980. The date specified in the charge was, so ran counsel's argument, tantamount to the supply of a material particular and did not have the effect of converging the range of the alleged offence to the singular occasion of the raid thus expunging its cumulative characteristic. Counsel sought to equate the present charge with one which would read:
9. "Keeping a disorderly house" is a cumulative offence at Common Law, which embraces a succession of transactions. Indeed, in R. v. Harrison, the charge was:
Harrison's case was not decided on the validity of the indictment. The point debated was whether evidence of activities on one single night would be sufficient to establish the offence of "keeping". Emphasis was placed on the proof of "habitual user", and it was not intended to broach the subject as to whether a cumulative offence might be committed without the element of persistent user in an isolated incident. It was decided that with several well-known prostitutes in one room and a man who had stayed with another known prostitute escaping through a window at the time of police enquiry, the activities on one night in those circumstances would be sufficient to found a conviction of the cumulative offence of keeping a disorderly house and brothel. At p.65, Fawcett, J. made the position crystal clear:
The arguments revolved around the issue, whether the one-night evidence was sufficient to support a habitual user, an acknowledged essential ingredient in the cumulative offence. 10. The cumulative offence of "keeping" embodies persistent participation in a series of transactions. Once the offence is complete, an accused person may be said to be guilty of it at any given point of time during the charge period, but he did not commit a cumulative offence at that or any other particular point of time. It stands to reason that no cumulative crime may be perpetrated by a non-recurring act or acts without the element of persistency. In another words, after a cumulative offence is complete, an accused person must have been guilty at all times as he was at any given point of time in the charge period, of habitually so conducting himself contrary to law, but it would be grossly inaccurate to describe him as "habitually" so conducting himself at a given point of time. It is the persistent course of conduct which is the essence of the crime. Before the cumulative offence is complete, he is merely acting in the midst of a series of acts which ultimately would gain "persistency". Attractive as it was, Mr. Mason-Parker's argument seemed to have left ill-defined the distinction between guilt and the segmented conduct which in isolation, must fall short of establishing a cumulative crime. 11. The charge in the present appeal is, in my view, defective by reason firstly that it is plainly impossible to have a disorderly house kept on the activities, however depraved, in one day and secondly that the charge fails to pin-point the relevant period of persistent user complained of, an essential ingredient and in fact the very foundation of the offence. To no small relief of mine, I finally find myself able to arrive at a conclusion which would not permit so universally accepted a form to be eroded. Consequently, I allow the appeal, quash the conviction, set aside the sentence and order that the fine imposed, if paid, be returned to the appellant.
Representation: Mr. Sanguinetti instructed by Messrs. Ho & Wong for Appellant. Mr. S.R. Mason-Parker, counsel for the Crown/Respondent. (1) [1976] HKLR 284 (2) [1977] HKLR 175 (3) [1964] 3 AER 616 (4) Crim. App. No. 61 of 1977 (unreported) (5) Crim. App. No. 686 of 1980, the judgment of which was given on the 11th September, 1980 (6) (1887) 8 NSWR 57 |