Mok Siu-kee v. The Queen

CACC001068/1979

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 1068 OF 1979.

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Coram: Silke, J. in Court

Date of Judgment: 28 December 1979

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JUDGMENT

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1. On the 28th December I dismissed this appeal, gave oral reasons for that decision and stated that I would reduce them to writing. This I now do.

2. The appellant was tried in South Kowloon Magistracy on a charge brought under the provisions of Section 145(a) of the Crimes Ordinance Cap. 200. The particulars being: Mok Siu Kee, you are charged that on the 27th day of September 1979 at the Fu Yuen Appartment at 231 Nathan Road Flat C, 4/F., Kowloon you being the person in charge of the premises did permit part of the premises to be used for the purposes of habitual prostitution.

3. He was convicted after trial and sentenced to a fine of $2,500 and to four months imprisonment suspended for eighteen months.

4. He appealed against both conviction and sentence but, at the hearing of the Appeal, he sought leave, which was granted, to withdraw his appeal against sentence.

5. The Fu Yuen Villa is, despite its name, an appartment house. Near by is the Dor Lei Hoy Escort Company. A police party kept observation on the escort company and on the 17th, 18th, 19th and 21st September males were seen to enter the escort company and leave shortly afterwards accompanied by young ladies. Each time the pairs went in the direction of the appartment house and, after a remarkably short time, reemerged, the young lady returning to the escort company the male leaving the area.

6. On the 24th September a raid was carried out on the escort company and then on the Fu Yuen Villa - under authorisation.

7. The appartment house had a glass door and a long corridor from which there were seven separate rooms each with its own bathroom.

8. At the time of the raid on the appartment house two police constables were discovered in two of the rooms: acting, I hasten to add, in the course of their duty. In two of the other rooms girls were found. There were also three males and one elderly lady: the defendant was one of the males.

9. The defendant was given a warning at that time, written down in a constables note book, that the premises were being used by prostitutes and that if this were permitted to continue he would face a charge.

10. On the 27th September 1979 another raid - also under authorisation - was carried out on the appartment house. This time there were found three males in separate rooms. Two of these were constables who had a little earlier obtained a female escort from the Dor Lei Hoy and gone with them to the appartment house. One of them had with him a female Lai Yen Ping - who had also been present at the time of the raid on the 24th. It was his evidence that on arrival at the appartment house he was met by the defendant, and his companion told him pay $18 room rent to the defendant. He was asked to sign the register by the defendant. Inside the room he was alloted the girl asked for $100 "with a cap on". He gave her $2 to buy the cap which an amah provided. Shortly after that the police raiding party knocked on the door.

11. Another constable had gone through the same procedure - the room rent this time being $20 - but inside the alloted room the girl refused to take off her clothes, which somewhat surprised the constable. They talked until the raiding party arrived.

12. On the 24th similar happenings had taken place according to the evidence of the two constables discovered in the rooms. On both occasions it was the defendant to whom the room rent was pend or who asked for it to be paid. He also asked for the register to be signed. In the rooms the girls again asked for money for sex. On both occasions a quantity of contraceptives were seized at the counter where the defendant had his place.

13. In an uncontested cautioned statement the defendant said he was a mere employee and that he did not know any of the escort ladies but that when they came they usually signed false names. He could not really know, he said, who was a prostitute.

14. In his evidence in his defence he basically repeated this and said he only collected the money and gave a receipt doing nothing else.

15. In the course of cross examination he gave two replies, one to the question "you must have known some of these were prostitutes?" He answered "Yes", then to the question "Therefore you knew a certain proportion of customers were prostitutes?" he answered "No".

16. Mr. Pirie, who appeared for the defendant took four main points:

17. The first that the defendant was not proved to be "the person in charge" within the meaning of the section. The section contains the words "being the tenant or occupier or person in charge etc". It is Mr. Pirie's contention that those words should be considered euisdom generis and that "person in charge" connotes something more than a mere caretaker or attendant.

18. With this I do not agree: depending on the evidence, and there is sufficient here, a "person in charge" can be such as the defendant and is simply the end of a descending scale of control of the premises.

19. He secondly submitted that there was no evidence of "habitual prostitution". I accept that "habitual" connotes a course of continuous conduct not something occasional or haphazard. It is true that the constables who kept observation on the days preceding the 24th September were not in a position to see the door of the appartment house but that which they did see combined with the evidence of that which did occur on both the 24th and the 27th is sufficient in my mind to show a course of conduct and the sole inference which can be drawn from it is prostitution.

20. Mr. Duffy, for the Crown, argues that the period is sufficient to amount to "habitual". He asks what period is necessary in the course of a police investigation? This, of course, again depends on the evidence and the testimony here as to the comings and goings observed and the actions which took place in the rooms on the 24th and 27th does in my view provide ample evidence to support habitual prostitution.

21. I do bear in mind in coming to that conclusion the girl who merely talked and the somewhat naive reply given by one constable in cross examination to the question "You had no idea why you going to room?" which he answered by saying "I did not know what she wanted to do".

22. Mr. Pirie's last point, "Was there sufficient evidence of prostitution on the premises?" was not seriously pressed. There was more than sufficient in my view.

23. Of course all these points go to the knowledge of the defendant of that which the Crown said was going on. I agree with the Learned Trial Magistrate's findings that the defendant was fully aware of the use of the premises. It was a finding he was perfectly justified in making.

24. In the event I dismissed the appeal

Representation:

Mr. Pirie (Haldane & Co.) for appellant

Mr. Duffy for Crown