HKSAR v. Yu Kwok Keung and Others

HCMA380/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 380 OF 2006

(ON APPEAL FROM KCCC 5595/2006)

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BETWEEN

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Coram:  Deputy High Court Judge Line in Court

Dates of Hearing:  30 March 2007

Date of Judgment:  30 March 2007

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J U D G M E N T

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1.This is an appeal against the refusal to award costs to four appellants against whom no evidence was offered in the Magistrates Court.  On 13 June 2006, arrests were made at a sauna in Granville Road.  The premises were set up and decked out as a sauna.  There were a lot of people working there.  I am told here today that at the time of the actual raid, there were 30 waiters working there and 28 masseuses. 

2.The four appellants were each charged with being the manager of premises kept as a vice establishment and those charges were preferred nearly five months after the raid, on 1st November.  There had obviously been plenty of time to think about the case.  The trial was set down for 7 December.  On 7 December, the prosecution applied for an adjournment and they frankly conceded at that time that their case against these four appellants was in difficulties because some three weeks before in a very similar prosecution involving the same teams of police officer, though different premises, a magistrate had declined to admit evidence of identification in circumstances where police officers, long after their visits to the premises, sought to identify waiters whom they had dealt with. 

3.The case was listed for mention on the 30th of December.  The prosecution then offered no evidence against the four appellants.  Their application for costs was adjourned until the trial of two co-accused.   They were tried and convicted and, in the course of hearing evidence in their trial, the magistrate took the view that the premises had been kept as a vice establishment over the relevant period of time and that included the time when these appellants had been working in the premises. 

4.He refused the application for their costs on the basis that by working in a vice establishment and knowing what was going on - and that is a realistic assessment on the evidence, in my view - they brought suspicion upon themselves and that must mean a suspicion upon themselves that they had committed the crime with which they had originally been charged or a similar one. 

5.It is with that last proposition that I disagree.  I cannot see that merely by working at the premises as a waiter, as was the allegation in the case of these four appellants, that they did in fact bring suspicion on themselves of being a manager of the premises or even assisting in the management.  I am told today by the respondent - I am not sure if it was in evidence - that there were 30 waiters there and 28 masseuses and that, in effect, the case against any particular waiter was that he would speak to a customer and negotiate with the customer sexual services by the masseuses for money.

6.The problems, it seems to me, that the prosecution faced were twofold.  One is, they could not identify satisfactorily any particular waiter as having done anything wrong but, secondly, how could they say that there were, in effect, 30 managers on the premises at the time.  Even if they had been charged with assisting in the management, what the waiters were doing, quite clearly, was assisting in the operation of the vice activity, but not in the management of the premises as a vice establishment.  You cannot have as many as 30 managers all managing one vice establishment, or 30 people assisting in its managements.  There is a distinction between management and workforce. 

7.The legislature has not made it a crime to be one of the ladies who offer sexual services in a vice establishment.  The only people they criminalise are the managers of those establishment and those who assist in the management.  I cannot see that by working in a role that is non-managerial and was, in effect, a workforce as opposed to management role, that you bring suspicion on yourself of being a manager or her assistant.  Looking at the timetable of events here, the prosecution should have addressed that issue way back in June of 2006.  Time went by with the matter unaddressed as to proving them to be managers and then from 14 November, they had the additional problem of identifying any of the four appellants. 

8.Accordingly, the usual rule that costs follow the event will follow today and I shall give the appellants their costs here and below, to be taxed if not agreed. 

Ms Kathie Cheung, Government Counsel, of the Department of Justice, for HKSAR

Mr Toby R W Jenkyn-Jones, instructed by Anthony Kwan & Co., for the 1st, 2nd, 3rd and 4th Appellants