Tam Kim-leung and Others v. The Queen

CACC001081/1981

[Assisting in management of vice establishment]

Coram: Roberts, C.J.

Date of Judgment: 22nd December, 1981

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JUDGMENT

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Preliminary

1. The first defendant was convicted of keeping a vice establishment, contrary to section 139(a) of the Crimes Ordinance. The second defendant was convicted of managing a vice establishment contrary to section 139(b) of the Crimes Ordinance. The third and fourth defendants were convicted of assisting in the management of a vice establishment, also contrary to section 139(b) of the Crimes Ordinance.

2. All appealed against both conviction. The second defendant also appealed against sentence.

Facts

3. There was abundant evidence before the magistrate that the premises concerned, that is to say the Silver Jubilee Nightclub, which was located at Nos. 3-5 Nanking Street, 1st Floor, Kowloon, were operated for a substantial period in the first half of 1981 as a vice establishment.

4. It was a type of establishment which is not uncommon in Hong Kong, consisting of a number of booths, constructed so that two people can sit together in a booth in relative privacy. During the hours when the establishment is operated the lighting is extremely dim, so much so that it is necessary for customers to be shown to places in the booths by ushers using torches.

5. The prosecution case depended primarily upon the evidence of five police officers, who attended the establishment on various occasions pretending to be ordinary customers. Their evidence, which was accepted by the magistrate, was that on every occasion, so-called hostesses, who were present in the establishment, offered to carry out various indecent acts of a sexual nature and that upon their acceptance of the offer such acts were in fact performed upon them.

Grounds of appeal

6. Mr. Cheng, who appeared for all four defendants on the appeal, very properly, and I think quite inevitably, conceded that for the purposes of the appeal he did not propose to argue that the magistrate was wrong in coining to the conclusion that the premises were being operated as a vice establishment.

7. The basis of his submissions, therefore, was not that no improper activities were being conducted on the premises, but that the evidence was not sufficient to establish that the four defendants were involved in the operation of the establishment in the manner alleged in the charges.

First defendant

8. The first defendant was charged with keeping a vice establishment. What in essence was the evidence against him? First of all, and most important, is the fact that he was the person who held the liquor licence relating to the premises. The licence appears to have been produced in evidence before the magistrate but unfortunately has disappeared from the file. For does it seem to have been made a formal exhibit.

9. Nevertheless, it is not disputed that the first defendant was the holder of a liquor licence, issued under the Dutiable Commodities Liquor Regulations.

10. In addition, this defendant was present on the premises on the 27th January when Woman Inspector Wong inspected them and warned him, as licensee, that acts of an indecent nature were being performed on the premises.

11. On 28th May, when Woman Inspector Tsang visited the premises, he does not appear to have been there at first, though he was summoned by other members of the staff. Again he was warned that immoral acts were taking place on the premises.

12. Only a few days' later, on the 2nd June, when the police raid took place, he was standing near the counter, when the police arrived. And the evidence of two police officers who, in the previous hour, had been customers established that immoral acts had been going on in such conditions that he must surely have known of them.

13. It is one of the conditions of a liquor licence that the licensee will not permit anyone else to become what is called virtually "the keeper of the premises." Prima facie, as licensee, he could therefore rightly be described as the keeper.

14. There can be no doubt that the premises were being operated as a vice establishment. In my view "keeping" means maintaining the premises, knowing that they are being used as a vice establishment and having some measure of control over their use as such, though this control may be short of active management on a continuous basis.

15. Was the magistrate justified in his conclusion that the first defendant knew that a vice establishment was being operated there and was exercising a degree of control over it, in the absence of any evidence to the contrary from this defendant? Neither he nor any of the other defendants chose to give evidence in the course of the trial, thus leaving the magistrate to reach his decision on the basis of the prosecution evidence and of such inferences as it was reasonable for him to draw therefrom.

16. Before the magistrate, was evidence that the first defendant held the liquor licence, that he knew the premises were being operated for immoral purposes, both in January and in May, that he was sent for by the staff on the police visit of the 24th May and that he was present in the premises while immorality was in progress on the 2nd June.

17. In my view, this evidence was sufficient to justify the magistrate in finding that the first defendant was keeping these premises as a vice establishment.

Second defendant

18. The second defendant was present on the various occasions when police officers entered the premises. And on the 28th May he admitted to Woman Inspector Tsang that he was the manager of the premises.

19. When police officers reported to her on 2nd June in his presence that various acts of indecency had occurred in the establishment, he said nothing.

20. When the Woman Inspector, on the 28th May, told the second defendant to put on the lights, this was done. When she warned him against the activities which had been taking place, she made an entry in her notebook to this effect, which he thereupon signed. In addition, he introduced customers to girls.

21. The evidence against him was more than sufficient to justify the magistrate in finding that the second defendant was managing the premises, that is to say, that he was exercising control over the operation of the Solver Jubilee Nightclub as an establishment in which immoral activities were taking place.

Third and fourth defendants

22. The third and fourth defendants were charged with assisting in the management of a vice establishment. The third defendant was the cashier. The only reference to him of importance in the evidence was made by Woman Inspector Tsang. When describing what she saw on the evening of the 2nd June, when she headed the police party, she said 'the third defendant was acting as cashier, he calculated the bills and received the money and put that into a drawer.'

23. The fourth defendant was an usher. Police officers described how he had shown them, on at least two occasions, to seats in the booths and how he had introduced girls to them.

24. He also, when the police officers described the immoral acts which had taken place, said nothing, although he was within hearing at the time.

25. I was referred to a recent decision of Penlington, J.⁽¹⁾ Towards the end of his judgment there appears the following passage:

"On behalf of the second appellant it was also argued that as he was just the cashier in the premises he was not assisting in the management. I was referred to the cases of Gorman v. Standen (1963 3 A.E.R. 627) and Abbott v. Smith (1964 3 A.E.R. 762). These cases seem to establish that to assist in the management of such premises there has to be something more than simply being employed there. If, for instance, a person was only working in the premises as a cleaner it would seem he is not assisting in the management thereof. In this case the second appellant was seated behind a clock counter which was the only part of the premises which was lit. It is not in dispute that he was there as cashier receiving the money paid by the various customers. On the counter in front of him were found the business records of the establishment and the Magistrate inferred from the circumstances that the second appellant had control of these records. That seems to be a perfectly legitimate inference. The Magistrate said that he was satisfied that the second appellant had some control over the takings of the business and that this constituted assisting in the management of the premises."

26. There is no evidence in this case to establish that the cashier was doing any more than the somewhat limited tasks which a cashier would normally be expected to perform. There is no evidence, as there was in the case before Penlington J., that the cashier had control over any of the records of the business or over the takings of the business, beyond such control as a cashier must necessarily have before the money which he receives is passed on to his employers.

27. To that extent, therefore, the case against this cashier can be said to be weaker than the case against the cashier in the other appeal.

28. Penlington J. referred to Abbott v. Smith, which was relied upon to some degree by Mr. Cheng. At the end of the judgment appears the following passage:

29. It is to be observed that the section with which we are dealing makes it an offence to assist in the management of a vice establishment, not to assist the manager of a vice establishment. In my view, the offence is complete if it can be shown that the defendant is taking a part of some significance in the running of a vice establishment.

30. I accept that the mere performance of what are described in Abbott v. Smith as menial and routine activities (though I make no effort to define what they are) is not of itself sufficient to justify a conviction for assisting in the management of a vice establishment. Nor is it enough merely to show that the defendant was merely employed there. I suggest, however, that a defendant would be properly found guilty of assisting in the management of a vice establishment if the evidence establishes that he:

31. I should make it clear that these are not exhaustive tests, in the sense that I do not suggest that those who fall outside these tests are necessarily not assisting in the management; only that those who do satisfy these tests probably are.

32. If we apply those tests to the facts of this case, I have no doubt that both the third and fourth defendants were rightly convicted. The third defendant was making up the bills, he was receiving the money and he was keeping it on behalf of the management, a task without which no establishment of this nature could operate effectively. There can be no doubt that he must have known that immoral conduct was going on in the Silver Jubilee Nightclub.

33. The fourth defendant was the usher. He received customers; he led them to the darkened booths; he enquired as to whether or not they wanted girls; if they signified their willingness, he would introduce girls to the customers. He, again, was taking what seems to me to be an active role in the forwarding of the purposes of the vice establishment.

34. I dismiss all four appeals against conviction.

Representation:

Cheng Huan, instructed by K.Y. WOO & Co., for Appellants

K.J. Oderberg, Crown Counsel, for Respondent

(1) Criminal Appeal No. 762 of 1980