Ling Kwok-yin and Others v. The Queen

CACC001088/1982

BETWEEN

Coram: Roberts, C.J.

Date:17th January, 1983

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JUDGMENT

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Preliminary

1. The defendants were charged with a number of offences arising out of a police raid on a licensed massage establishment, known as the Far East Steam Bath Centre, in Kowloon, on the 16th February, 1982.

2. LING Kwok-yin (D. l) was convicted of failing to observe the condition of the licence, namely, by allowing male persons to be treated by female persons (Charge A); of failure to submit a return in writing to the licensing authority of particulars relating to persons employed in the premises (Charge B); and of employing in the premises persons not approved by the Licensing Authority (Charge C).

3. CHAN Kam-tim (D.2), FAN Hon - wah (D.3), CHAN Suet-har (D.4) and YAU Oi (D.5) were all convicted of failing, being servants or agents of the licensee, to observe a condition of the licence, namely, by allowing male persons to be treated by female persons. (Charges D, E, F. and G.).

Grounds of Appeal

4. At the beginning of his argument, counsel for D.1 conceded that he could not properly argue that the convictions of D.1 on Charges B and C were wrong. He therefore abandoned the appeal to that extent.

5. With regard to Charges E, F and G, his only submission was that D.3, D:4 and D.5 had been wrongly convicted because the prosecution had failed to prove its case. Regulation 32 of the Miscellaneous Licence Regulations, under which D.3, D.4 D.5 and D.6 were charged, provides as follows -

6. It was argued that, because there was no evidence that the licence held by D.1 did not contain a condition which permitted male persons to be treated by female persons, the Crown had failed to establish its case and the defendants must be acquitted.

7. This argument fails to take account of section 94A of the criminal Procedure Code, which provides that in criminal proceedings the burden of proving an exception, exemption, qualification or similar tatters lies on the defendant.

8. Thus, in the absence of any evidence that the licence did permit male persons to be treated by female persons, the prosecution had discharged the burden which lay upon it, by establishing that D.2, D.3, D.4 and D.5 were servants of the licensee of the massage establishment and that males were treated therein by females with their knowledge and assistance.

Evidence of delegation of powers by the licensee

9. The, magistrate finds, and there was ample evidence which entitled him to do so, that D.2 was the employee or servant of D.1, the licensee of the massage establishment, on the 16th February.

10. It is apparent from the evidence that D.2 claimed, to one of the police officers, that he was in charge of the premises; and that it was he who produced on demand, the various licences and cards of the employees for inspection by the police.

11. The magistrate, however, did not make any finding .as to the degree of delegation by D.1, the licensee, to D.2, the manager of the massage establishment.

12. The question of the degree of proof required in a prosecution of this nature was considered at very great length by the Court of Appeal in KWOK Hung-fai and Others v. R.⁽¹⁾.

13. In the course of his judgment, Li, J.A. sets out the question in the following terms -

"Nor is it helpful to argue that liability of the absentee licensee depends on the degree of delegation. Either he delegated or he did not. This is a question of fact. If he did, the provisions in section 8 will take effect and operate to fix him with liability. If he did not, there is no proof of any master/principal and servant/ agent relationship, he will be clearly not liable as the 1st appellant is not liable in the present case."

14. Thus a magistrate must ask himself, in each case, whether, on the evidence put before him, a licensee, in a case in which no actual knowledge by him can be established, delegated to the person in charge of the establishment his power to run it.

15. Nowhere in his judgment does the magistrate consider this point, nor does he make any finding of fact as to whether or not D. 1 had delegated his powers to run the massage establishment to D.2. On the authority of KWOK Hung-fai ⁽¹⁾, the answer to this question determines whether or not D.1 could properly be convicted of the offence with which he was charged.

16. If he did delegate his powers to D.2, and it is established (as it was ) that D.2 had knowledge of the breaches of regulation 32, D.1 would, by virtue of the provisions of section 8 of the Ordinance, be liable for the breach also, whether he knew of it or not.

17. If, on the other hand, D.1 did not delegate his powers to D.2, D.1 will not, as licensee, be liable unless it can be shown that he had knowledge that breaches of the regulation were committed.

18. The failure of the magistrate to reach any finding of fact as to whether or not the licensee had delegated his powers to D.2 is fatal to the conviction of D.1 on charge A. I therefore quash that conviction and allow the appeal to that extent.

(1)    Crim. App. No.384/82.

Representation:

Wesley Wong (C. T. Chan & Co.) for A. l.

A.2 to A.5 in person

D. Lyons, Crown counsel, for Respondent.