Attorney General v. Cheung Ching-kiang and Others

CACC001102/1981

BETWEEN

________

Coram: Jones, J.

Date: 4 January 1982

_______________

J U D G M E N T

________________

1. This is an appeal by the Attorney General by way of case stated.

2. On the 9th October 1981 at Causeway Bay Magistrates Court the first respondent was Charged under Section 4 of the Miscellaneous Licences Ordinance Cap. 114 that on the 11th July 1981 at Flat A9, 6/F., Pearl City Mansion, Paterson Street, Chung Wah Acupuncture Clinic, she did conduct a business of a massage establishment without a licence. The second and third respondents were jointly charged with the first respondent under Section 89 of the Criminal Procedure Ordinance Cap. 221 that they did aid and abet the first respondent in the commission of that offence.

3. At the conclusion of the hearing the charge against all the respondents was dismissed.

4. The facts found by the magistrate were as follows:-

"The 1st Respondent was the registered proprietor of the Chung Wah Acupuncture Clinic and had been carrying on business under that name at Flat A9 6/F, Pearl City Mansion, Paterson Street since 1978.

The 2nd and 3rd Respondents were the employees of the 1st Respondent in the said Clinic. The 2nd Respondent had previous training in finger-pressing treatment and had been employed by the 1st Respondent for one and half months prior to 11th July, 1981.

On 11th July, 1981, Detective Station Sergeant TSUI Chi-ming, posing as a customer, visited the said Clinic and was received by the 1st Respondent who asked him to choose a girl for the service. Sergeant Tsui did not give any positive reply. Then the 2nd Respondent led him into a room where he was asked to take off his clothes and put on a pair of underpants provided by the Clinic. Following that, the 2nd Respondent asked Sergeant Tsui to lie on a bed and then used her fingers to press the muscles and joints of his arms.

At no time was there any diagnosis of ailment given by the 1st Respondent to Sergeant Tsui but his self described symptoms had been recorded.

It was an agreed fact that another police officer visited the Clinic shortly after Sergeant Tsui on 11th July 1981 and received finger-pressing treatment at the premises but this time it was performed by the 3rd Respondent.

While the said police officers were receiving the finger-pressing treatment as described above, a police party led by Woman Inspector. TSUI arrived and arrested the Respondents for infringement of the Miscellaneous Licences Ordinance, Cap. 114.

It was contended by the Appellant that finger-pressing treatment is within the meaning of the words "message or other simlar treatment" in the definition of "massage establishment" in Sec. 2 of Miscellaneous Licences Ordinance, Cap. 114."

5. The case stated by the magistrate and agreed by the parties raises the following question of law:-

"Whether I was correct in law in holding that fingerpressing treatment is not within the meaning of the words "massage or other similar treatment" in the definition of "massage establishment" in Sec. 2 of the Miscellaneous Ordinance, Cap. 114."

6. Pursuant to Section 4 of the Miscellaneous Licences Ordinance no person may operate a massage establishment without a licence.

7. Massage establishment is defined in Section 2 as follows:-

"means any premises used or represented as being or intended to be used for the reception or treatment of persons requiring massage or other similar treatment, except a hospital for the time being recognized by the Director of Medical and Health Services, or except an establishment carried on by a duly registered medical practitioner, or except the premises of a hairdresser, where face or scalp massage is administered to female customers only or is administered in his shop or saloon in full view of all customers resorting thereto, or except a physiotherapy clinic."

8. It was submitted by Mr. Wong who appeared for the Attorney General that an acupuncturist does not come within any of the exceptions provided for in the section. By virtue of the provisions of the Medical Registration Ordinance I am satisfied that an acupuncturist is not a duly registered medical practitioner. It is also clear that an acupuncturist does not come within the ambit of the other exceptions referred to in the section. An acupuncturist must therefore have a licence in order to conduct a massage establishment.

9. The magistrate decided that the treatment of finger pressing that was carried out by the second respondent was an integral part of acupuncture treatment, and as demonstrated was not meant to be caught by the ordinance. He cited the Oxford Dictionary meaning of massage as " .... a special form of kneading, rubbing, pinching and punching of the skin and joints".

10. The object of a massage is to stimulate the muscles and joints of the body.  Whether or not finger-pressing is an integral part of acupuncture treatment or a substitute the second respondent undoubtedly used her fingers to press the muscles and joints of Sergeant Tsui's arms. Whilst it is not clear whether any genuine therapeutic value was intended to be given such action, in my opinion, comes within the definition of massage. Had I held otherwise I am quite satisfied that it was covered by the words 'other similar treatment'.

11. The answer to the question as raised in the case stated is 'No'. As the case has been hanging over the respondents for almost six months, I shall only remit the matter with my opinion to the magistrate, and will not send it back for re-trial.

Representation:

Mr. Frank Wong (Legal Department) for Attorney General.

Mr. Peter Chan (Alfred Lau & Co.) for respondents (1st and 2nd).

3rd respondent absent.