Wong Choi-fung v. The Queen
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CACC000061/1977
----------------- Coram: Leonard, J. Date of Judgment: 1st March, 1977. ----------------- JUDGMENT ----------------- 1. The appellant was convicted in the court below of keeping a disorderly house; assaulting a police officer in the execution of his duty; escaping from lawful custody and, on a separate occasion, resisting arrest. The first and third charges were based on the Common Law, the second charge on Offences Against the Persons Ordinance and the fourth charge on section 63 of the Police Force Ordinance. 2. The facts are shortly as follows: the police apparently suspected that the appellant of engaging as a prostitute at the premises in question and were clearly under the utterly mistaken impression that her so doing rendered the premises a disorderly house. On the 6th of September 1976 shortly after lunch time an auxiliary police officer went to the premises, on instructions, bearing a $100 note. He entered the premises and gave the $100 note to the appellant, got $40 change from her and, if his evidence be accepted, indulged in sexual acts with her. The intention was that a raiding party should follow him but the raiding party did not follow him and growing impatient he said that he had a warrant card in his trousers' pocket that he was a police officer and he was going to arrest the appellant for prostitution. There is of course no such offence and the police officer in question was not entitled to arrest the appellant for any offence as he should have known had he known the law. 3. The premises were not a brothel since the only prostitute involved, if she was in fact a prostitute, was the appellant. They were, as was proved by photographs exhibited an ordinary private flat and not a disorderly house. They became somewhat disorderly when the appellant found out that her guest was not a genuine "client" but a police officer trying to trap her. She was a large woman and the police officer a small man. I do not know if it could be said that she was a "belle dame" but she was certainly "sans merci" for she put him out of the flat and left him "alone and palely loitering" half undressed in the corridor. She kicked him on the way but I do not consider from my perusal of the record that she used any more force than was reasonably necessary for the purpose of ejecting a trespasser from her flat. Clearly he was a trespasser. He had come initially to deceive her and had succeeded in deceiving her. When she discovered the deception her indignation clearly showed that any licence to enter he may have obtained by his deception and more particularly any licence to remain in the premises was revoked. He had no right to arrest her and was certainly not acting in the course of his duty. She had committed no crime in "entertaining" him and certainly he was not acting in the execution of his duty in seeking to remain in her flat or to arrest her. I must confess to being unable to understand why the police or the learned magistrate should have thought that the offence of keeping a disorderly house was made out by proof that one woman permitted a stranger to enter her flat for sexual purposes for reward. At common law there can be two distinct offences in this context: (1) Keeping a "bawdy house" (or brothel), for which the law requires that "people of both sexes, in the plural, must go there" Gorman v. Standen(1) at 302. Thus for a house to be a bawdy house or brothel it must be used by at least two prostitutes; (2) Keeping a disorderly house. The old form of indictment for keeping a disorderly house is not only remarkable as a piece of robust English, it also serves to illustrate forcibly what the Common Law meant. It read :
Plurality of persons engaged in misbehaviour was clearly always a requirement and also some element of freedom of access to the public. The house must be "an open house" even though it need not be open to the public at large (R. v. Berg 1927 20 Cr. App. R. 38). Accordingly I must allow the appeal on the first three charges. 4. There remains the charge of resisting arrest which arose out of events occurring the following day i.e. the 7th of September 1976. Much as I deplore the attitude of more senior officers in sending this auxiliary police officer into this woman's flat (which on the face of it was a normal home) to catch her out in what they thought was a crime and to participate with her in immoral behaviour as he says he did, I am still more appalled by what happened on the 7th September. On that day, still under the wrongful impression that she had been keeping a disorderly house they wished to arrest her. They saw fit to attend the school at which her two children were studying in order to do so because they knew she would go there to pick up the children. They there sought to arrest her. In the words of the woman police constable whom she is alleged to have resisted :
There is in this very brief description of what occurred a clear indication to me that there had some resistance to the arrest. The handcuffing of a woman in public outside a school is something to which I feel sure no member of the Royal Hong Kong Police Force would resort unless there were violent resistance partioularly if the person to be handcuffed is the parent of one of the children in the school. That there was resistance to this arrest is also shown by the evidence of Inspector Dickinson who said that she resisted and that he, a sergeant and a police constable assisted in the arrest; that she continued to struggle and that he therefore ordered the police constable to put handcuffs on her. The police constable said in the brief notes of the magistrate:
One of the difficulties in this case arises from the brevity of the learned magistrate's notes. Nothing like the whole picture emerges. We are not told why the police had to go to the school to effect the arrest and that they did so shows most distressing insensitivity towards the feelings of this unfortunate woman. She and her children must have suffered shocking humiliation. I am satisfied that the appellant has been very hard done by. She was not keeping a disorderly house. At the worst she was engaging in prostitution while her children were at school and her husband was away from home. But she did resist arrest. Of that I am satisfied and the terms of section 50 of the Police Force Ordinance are so appallingly wide that her arrest would appear, legalistically speaking, to have been a lawful one. I must therefore regard this charge as technically proved. However the circumstances of the arrest were such as to invite resistance. Therefore while allowing the appeal on the first three charges I propose to allow the appeal also on the fourth charge to the extent that I regard this charge as proved but order that no conviction be recorded.
Representation: Mr. B. Bernacchi and Mr. L. Leong (George Liang & Co.) for the appellant. Mr. Duncan, C.C. for the Crown/respondent. (1) (1963) 1 Q.B. 294. |