Chan Kam Wing v. The Queen
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CACC000617/1969 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 617 OF 1969 -----------------
Coram: McMullin, J. in court. Date of Judgment: 26 September 1969 ----------------- JUDGMENT ----------------- 1. The appellant was convicted, under Section 12 of the Protection of Women and Juveniles Ordinance, of the offence of permitting premises to be used as a brothel. The appellant who is a boy of 18 years of age was fined $500. He appeals against his conviction on a number of grounds which may, I think, be conveniently reduced to two general grounds. Firstly, it is said that the magistrate was wrong in holding that the appellant knowingly permitted the apartment to be used as a brothel and, secondly, that the magistrate so far as the evidence was concerned, had shown an unfair bias against the accused by drawing inferences against the accused on a body of facts which could not support such inferences. Mr. Gunston, who appeared for the defendant both in the court below and upon the appeal, amplified the latter ground by saying that, while the learned magistrate tried the case in a perfectly proper and competent way, he nevertheless showed himself inclined, wherever possible, to draw an inference against the interests of the accused in respect of evidence which was either neutral or which might even be interpreted in his favour. 2. It is important to note that the evidence against the accused concerns events which occurred at the Pink Apartment House during a comparatively short period of time on the 12th June, 1969. There is nothing in the evidence to show that the accused was ever seen on those premises or connected in any way therewith on any other occasion nor is there evidence to show that he lived at those premises. I think it is, tacitly at least, conceded that he is not the proprietor of the premises. The accused did not give evidence but his lawyer in cross-examination put it to the first prosecution witness, Detective Inspector Wong, that when the accused was found behind the counter of the Pink Apartment at 9.35 p.m. he told the police officer that although he was in charge at the time it was his mother who was the owner of the premises and that she was out at the time. There was, in this connection, an apparent misconstruction of the recorded evidence on the part of the magistrate. The reply made by Inspector Wong to this suggestion is noted in the record of the evidence as follows:-
In respect of this the learned magistrate says on the second page of his judgment:-
This was a somewhat unfortunate misconstruction since it reflects upon the vital question as to what was the accused's exact role on the night in question and what was his degree of knowledge as to the nature of the premises of which he was temporarily in charge. 3. The learned magistrate addressed himself clearly and fairly to the legal issues in relation to the matters which must be proved before him by the prosecution before a conviction could follow. It is clear from his judgment that the only matter that gave him trouble as to the adequacy of the proof was the evidence concerning this very question of the accused's knowledge. The judgment starts therefore under the disability that the magistrate took the view that the accused had made no explanation as to his presence on the premises whatsoever where as the contrary appears to have been the case. 4. I do not propose to go into the evidence in detail. It consisted of the evidence of two self-confessed prostitutes, P.W.5 and P.W.6, both of whom admitted to the court that they had gone to the Pink Apartment that night for the purpose of prostitution and that they had done so on previous occasions. This evidence was supplemented by the evidence of Inspector Bruce, P.W.4, and Woman Inspector Lily Stradmoor, P.W.3, who went there at 9.20 p.m. on that night in question posing respectively as an American sailor and a Chinese bar girl. There was then evidence that the police raiding party which arrived a very short time later searched rooms on the premises and discovered several American sailors and several Chinese girls in compromising positions together. These included Julie P.W.5. 5. I think it is fair to say at once that there was ample evidence to support the magistrate's findings that the Pink Apartment was customarily or frequently used as a brothel and also his finding that P.W.5 and P.W.6 are prostitutes who were plying their trade there on that occasion. There is also clear evidence that the accused was in the position of a keeper of the premises within the meaning of the definition of that term in the ordinance at the time, at least, that Inspectors Stradmoor and Bruce presented them selves at the desk. The vital question to be resolved however was whether the accused knowingly permitted the premises to be used as a brothel and it is from the learned magistrate's answer to this question that all the Crown's difficulty has arisen on the hearing of this appeal. The learned magistrate appears to have addressed himself to this question in the following way: firstly, he consulted the definition of "brothel" in the Ordinance and then he went on to consider such evidence as he thought showed conclusively that the accused knew that he was in charge of a brothel. In doing so, it appears to me that he realized that the definition provides specifically for two types of premises either of which if proved to exist would constitute a brothel. Unfortunately, he does not appear to have considered the two possibilities offered by the definition separately and has, to some extent, allowed them to overlap in his consideration of the evidence. 6. In relation to that definition, a person might be found guilty of permitting premises to be used as a brothel in either one of two ways: firstly, it might be shown by evidence that he was well aware that the premises was customarily used as a place of resort for men and women for the purpose of illicit intercourse and that he had, knowing that, permitted, even on one occasion, a man and a woman to make use of them under circumstances which made it clear that he realized that they were about the same business; secondly, his guilt might be proved by evidence that, irrespective of what his state of knowledge was concerning the previous character of the premises and its usage, he had on any given occasion permitted two persons known to him to be prostitutes to ply their trade at that premises. The evidence might of course be sufficient to prove both those things but, it would seem, no conviction could follow unless at least one such matter had been proved as a minimum requirement. Such at any rate appears to me to be the meaning of the interpretation of "brothel" in our Ordinance. It is to be noted that none of the legislation upon which prosecutions were based in the several English cases mentioned by the magistrate nor indeed in any of the cases which I have since consulted is there any actual statutory definition of the word "brothel". The magistrate refers to the definition given in Smith and Hogan's Criminal Law at p.311. This definition is based upon the old decision in Singleton v. Ellison(1). It is a definition fairly representative of the definitions adopted by judges in various similar decisions. In Gorman v. Standen(2) Lord Parker says at p.631:-
In Winter v. Woolfe(3), a case referred to and relied upon by the magistrate, Avory, J. at p.555 adopts the definition of a brothel given by Grove and Lopes, JJ. in the case of R. v. Justices of Parts of Holland, Lincolnshire(4). That definition is to the effect that a brothel is any premises kept knowingly for the purpose of people having illicit sexual connection there. 7. It would appear therefore that our definition adopts the common law definition as enunciated in the two older cases referred to above plus the more recent refinement, evolved from later decisions, that it must be shown that more than one woman resorts to the premises for purposes of illicit sexual intercourse before the evidence is sufficient to show such premises to be of the nature of a brothel. All the more recent cases deal with prostitution on the basis that it is constituted by illicit sexual intercourse without importing into it the notion of intercourse for reward and the words "brothel", "bawdy house" and "common bawdy house" have been held to be equivalent in meaning. 8. It might be said therefore that the definition on the Ordinance is in the nature of a tautology since the current common law notion of what constitutes one covers both the elements mentioned separately in the Hong Kong definition. It could be read as meaning that "brothel" includes any premises etc. which would constitute a brothel at common law and any house, room, etc. which constituted a brothel at common law. Since what constitutes a brothel at common law is the frequenting or use of such place by more than one woman for prostitution, i.e. fornication i.e. illicit sexual intercourse. Now the common law definitions referred to above import, to my mind, the idea of habitual resort by persons of both sexes to premises for the purpose of illicit sexual intercourse. Under these common law definitions therefore, evidence which simply showed that two or more women went to a particular place and indulged in prostitution on one occasion would not seem to be sufficient to show that that place was a brothel. If the definition in the Ordinance is to be regarded as tautologous then it would be likewise insufficient, in a prosecution for knowingly permitting a premises in Hong Kong to be used as a brothel to show simply that that two women were upon a single occasion permitted to use a premises or part of a premises for illicit sexual intercourse. If, however, it be assumed that the legislature wished to make a specific distinction in the definition of "brothel" between premises which would constitute a bawdy house at common law and premises frequented by two or more females for prostitution that distinction may perhaps be found by positing an intention that evidence of user even upon a single occasion by two females or more of a premises for prostitution would be sufficient to constitute that premises a brothel. 9. If this is the correct view then it would not be necessary, in a prosecution under Section 12, for the Crown to show both that the accused knew that the premises were used generally as a resort for persons of opposite sexes for illicit sexual intercourse and also that two females upon the occasion complained of were frequenting the premises for the purpose of prostitution. As a corollary it would follow that where there was no evidence to show that the premises were commonly used as a brothel a that the accused knew that fact but where the evidence was sufficient to show that he had upon one occasion permitted two women to use the premises or part there of for prostitution a conviction should follow. 10. These are possibilities suggested by the interpretation of "brothel" in the Ordinance set over against what appears now to be the common law under standing of the term and which has achieved some fair degree of clearness through judicial pronouncements in England. I feel that the learned magistrate may to some degree have been troubled by this very same ambiguity because he set for himself the task of examining the evidence with a view to determining whether or not it was capable of showing both that that the accused knew the premises was a resort for prostitutes plying their trade and also that he knew, on the occasion when the police raided the premises that two or more females were using the premises for prostitution. In this, Mr. Sceats for the Crown, would have it that the magistrate set too onerous a task for the prosecution. According to Mr. Sceats, the magistrate was quite justified in coming to the conclusion which appears on p.5 of the judgment in the following terms:-
Once he was satisfied as to the accused's state of knowledge from the evidence at large, all that was necessary to complete the case for the Crown was something to show that the accused knowing what he did about the premises, permitted any woman and her companion to occupy a room therein under circumstances which made it reasonable to infer that they too were about the business common to the usual patrons of the place. This evidence, he says, is supplied by the girl Julie, P.W.5, whose evidence the magistrate accepted as showing that in the accused's presence and to his knowledge, she had rented a room for herself and her companion for a few hours. On this view of the requirements of the section, coupled with the definition of "brothel", it was, according to Mr. Sceats unnecessary for the magistrate to go on to say in the passage, which immediately follows the passage quote above:-
This passage makes it clear that the magistrate was of the opinion that, before a conviction could follow, it must be proved beyond reasonable doubt that two women were, with the accused's permission, upon the premises for the purpose of prostitution. If it were necessary to prove that, the Crown was in the patent difficulty that P.W.6 was not dealt with by the accused upon her entry into the premises and there was no evidence whatsoever to show that he was on the premises when she arrived or that he was aware of her presence there at any time. 11. Now Mr Sceats may very well be right in saying that it was unnecessary for the magistrate to consider whether or not the accused knew of the existence of the second of the two prostitutes on the premises. Clearly, however, he thought it was necessary for him to do so and, in considering the evidence concerning the second girl, he engaged in what appears to be a curiously circular argument. Firstly, he concluded that, from the evidence as a whole, the accused knew the apartments were used as a brothel in that they were a resort for prostitutes. Secondly, in considering whether the accused knew that they were a brothel in the sense that there were then two females known to him upon the premises for the purpose of prostitution he concluded that, whereas the evidence only showed that the accused knew of the presence of one of the females he must nevertheless have known of the presence of the other because he knew the place was a brothel. The only illumination that he supplied upon this form of reasoning is the rather cryptic remark which appears in the penultimate paragraph on p.5. 12. "The register gave him certain information". This line of reasoning, whether necessary or not to the conclusion he came to, seems to be fallacious and it does lend some colour to Mr. Gunston's contention that the learned magistrate was pressing his "common sense approach" considerably further than the evidence would warrant. 13. I have assumed, without purporting to decide the matter, that the definition of brothel affords to the prosecution the possibility of proving a charge by evidence which would establish either one of two things. The magistrate took the view that both those things should be proved but which ever of those views is correct I am satisfied that the evidence before him was not sufficient to prove beyond reasonable doubt that the accused was aware of the presence on the premises that night of both Lily and Mary for the purpose of prostitution. To say that he must have been aware that Mary was there simply because at a later period in the evening and for about 15 minutes he was in possession of the register, without any evidence that he ever consulted the register in connection with anyone other than P.W.3 or P.W.4, goes, to my mind, far beyond the bounds of fair inference from fact. 14. Assuming the learned magistrate was wrong as to what he thought was necessary to be proved, and setting on one side that part of his judgment in which he records his reasons for coming to the conclusion that the accused knew of the presence of Mary, P.W.6, is there enough upon the evidence as a whole to support the inference that the accused was aware that the premises was a common bawdy house and that he permitted it to be used for the purpose of prostitution? 15. The relevant facts are as follows: Sometime after 7 p.m. on the 12the June the prostitute Julie, P.W.5, took her male companion to the Pink Apartments and there procured a room for the two of them from a woman who was there. She said that the accused was present when she was speaking to the woman but there is nothing to indicate whether or not he was close to them or what he was doing or what part of the room he was occupying. At all events, it is clear he took no active part in this transaction. The second prostitute Mary Wong, came in sometimes after 8 p.m. The accused was apparently not on the premises at all at that time. At 9.20 p.m. the police investigators, P.W.3 and P.W.4 arrived at the Pink Apartments and on this occasion it is clear that the defendant was behind the desk and behaving as a person in charge of the premises. He negotiated with Inspector Stradmoor in Chinese, allocated her room No.17, and got her and Inspector Bruce to sign the register. He said he would fill in the remaining particulars of the register and asked her at which bar she was working. She gave the name of the Hong Kong Playboy Bar. He also said that the room would be $25 and on being given a $50 note he took it and left the room. Not long afterwards, change was given to Inspector Bruce by a woman who came to the room. At 9.35 p.m. the police raiding party entered and various rooms were inspected and four were found to be occupied by American sailors and Chinese girls. After this the police asked the accused to unlock the cash door in the desk and the accused took the keys from his person and unlocked the door. 16. There are several criticisms of the evidence and the findings thereon made by Mr. Gunston which are relevant to the question of the accused's knowledge of the nature of the premises. There is no doubt that on this matter, the magistrate did purport to rely upon certain items of evidence which were, to say the least, dubious. Firstly, there was the evidence concerning the "Social Hygiene Card" carried by one of the prostitutes. The number of this card was inserted in the register in the entry concerning her that night. A similar number was entered in the relevant position in the register entry concerning the blameless policewoman, P.W.3, who possesses no such card, and the magistrate assumed, although there was no positive evidence on the matter, not only that the accused had invented the number and made that entry but also that that entry, and all other such entries in the register, had a special significance in relation to the character of the girls who registered there. No evidence was called to show what a Social Hygiene Card is or what it significance is and the magistrate, while not specifically saying so, seemed to consider that it had some reference to bar-girls or prostitutes. Secondly, there was the finding that there was no evidence of surprise upon the accused's part when the police raiding party discovered the various couples in compromising situations in the various rooms. In any event it was for the Crown to produce evidence of his demeanour and not for the accused to do so but, leaving that aside, the plain fact of the matter is that is there no evidence on record as to demeanour. 17. Now I may say at once that,notwithstanding Mr. Gunston's spirited defence of the purity of bar girls and the honour of sailors there was abundant evidence on which the magistrate could find that the Pink Apartment was run as a brothel. The evidence of Julie (P.W.5) and Mary (P.W.6) alone would be enough for that. In addition, the contents of the register - which I think was properly in evidence as to its whole contents - is eloquent support for the finding, with its unvarying chronicle of the taking of rooms by young sailors and young bar girls for a few hours at a time. 18. But if one remembers that the accused was only observed to be connected with the premises for less than 20 minutes on one occasion and if one discounts those factors upon which I think the magistrate mistakenly relied it becomes difficult - in view of the weight he clearly gave to those factors to feel easy with the assertion: "quite apart from this I am satisfied and find as a fact on common sense alone that he knew what was going on in the premises and was aware that it was a resort for prostitutes plying their trade" (P.5 of the judgment). The other factors on which common sense was to operate were: the accused's presence when Julie (P.W.5) arrived; the way he dealt with P.W.3 and P.W.4; his possession of the register and keys. I incline to the view that the magistrate was entitled to infer from those factors alone that accused knew that the Pink Apartment was a brothel although his finding is obviously weakened by the fact that he sought support for it in evidence which was immaterial (the Social Hygiene Card) or non-existent (demeanour) and did so moreover in the mistaken belief that the accused had never offered to anyone an explanation of why he was there. But even assuming that the evidence fairly supports that inference the matter does not end there. 19. Mr. Gunston has reminded me that the offence alleged against his client is not that he was knowingly in charge of a brothel but that he was in charge of premises which he knowingly permitted to be used as a brothel. It is an important point and is indeed the subject of a specific and affirmative finding by the magistrate at p.6 of his judgment. Now the only evidence on record to show that the accused was ever in charge of the premises at all is the evidence given by P.W.5 Julie and the evidence of the police witnesses P.W.3 and P.W.4. As to the evidence of P.W.5 the learned magistrate says (p.4) :-
"not" in this passage is redundant but the sense is clear. To my mind that finding seems to fly in the face of the clear evidence that the person who appeared to be in charge of the premises at that moment was the woman with whom the prostitute Julie dealt. There is simply no evidence from which it could be inferred that the accused was at that moment in joint charge with her. Nor do I think it fair to conclude that because he later quite clearly was in charge that he must have to some extent been in charge on the earlier occasion. 20. Assuming therefore that at the time that P.W.3 and P.W.4 arrived the accused knew that the premises was a brothel and assuming that he was in charge of them, did he permit them to be used as a brothel. The evidence as to his presence on the premises covers a very short period of time on this single evening. He does not live there and there is nothing to show that he worked there or ever has worked there apart from the evening in question. At the time that P.W.3 AND P.W.4 arrived therefore there is no evidence from which it could reasonably be inferred that he knew who was upon the premises with the possible exception of the girl Julie and her companion. But even assuming that he knew that they took a room and for what purpose it was clearly not he who permitted them to do so. The only persons he quite clearly did permit to take a room on the premises were P.W.3 and P.W.4 and on the evidence, whatever the accused may have thought they were going to do, they did not use the room allotted to them for the purpose of prostitution. The value of the Crown of this evidence was that it tended to show the knowledge and intention of the accused in relation to the user of the premises and that it supplemented certain other elements in the evidence which might lead the magistrate to conclude, as he did conclude, that the accused not only knew that there was a brothel in operation there but that he permitted it to operate. 21. This line of reasoning undoubtedly appeals to common sense, as the magistrate more than once suggested, but I think there is one important factor which has been overlooked. The definition of "keeper" of premises includes (a) any person having the management or control of the premises and (b) any person appearing to have management or control of the premises. The distinction between these two categories is of great importance in relation to the kind of evidence which the Crown must produce in order to prove a knowing permitting of the prohibited user. The distinction, to my mind, is clearly between a person who is in the ordinary sense a keeper of the premises, i.e. normally the manager and controller thereof on the one hand, and one who, on the other, cannot be shown to be such but who on at least one occasion has behaved as though he were in management and control. Where the evidence shows that the accused is the owner or proprietor or hired manager or person regularly in control of the premises and where it also shows that at the time of his arrest the rooms were occupied by persons for the purpose of prostitution it is no doubt a reasonable inference from those facts that he permitted the premises to be so used. This conclusion could reasonably follow even in the absence of any positive evidence to show that he was aware of the existence of the premises at the time of his arrest of the persons occuping the rooms. In other words, the gap between the body of evidence which shows that the premises was being used as a brothel and the body of evidence showing that the accused was in command of the premises at the time of his arrest is bridged by this very fact of his regular employment in that capacity. But where the evidence only goes far enough to show that on one occasion he acted in such a way as to give the appearance of control proof of the offence must be more particular. It must show that the accused permitted at least one man and one woman to take a room in the premises under circumstances giving rise to a reasonable inference that they were going to use it for illicit sexual intercourse and that they did so use it. I might also suggest tentatively, in pursuance of the hesitations I have expressed concerning the definition of "brothel" in the Ordinance earlier in this judgment, that there might be a third possible category of sufficient evidence. It might be that where there was no body of evidence to show that the premises were regularly used as a brothel and also no body of evidence to show that the accused was regularly the keeper of the premises a prosecution might nevertheless be successfully maintained where it could be shown that the accused permitted two women to occupy a room or rooms in the premises with explicit knowledge that they intended to engage in illicit sexual intercourse therein provided there were also circumstances from which it might be inferred that they had done so or were about to do so. 22. It might be, of course that, in a given case, the circumstances showing apparent control were such that a reasonable inference of regular control could be made therefrom. If, in addition, there was evidence to show that at the time of arrest the premises were in fact being used by two or more women for prostitution then, even though there was no evidence to show explicit knowledge of their presence on the part of the accused, a conviction might follow but this again would be on the basis that the accused had so behaved as to raise a reasonable inference that he was a regular controller of the premises and that he must be deemed to know what was going on thereon at any time. For an act of apparent control to justify such an inference of regular control, the evidence would, in my view, need to be considerably stronger than the evidence which was produced against the accused in this case. An 18 year old schoolboy who is not shown to have had any previous connection with the premises whatsoever is seen to be in apparent control of it for some 15 minutes on a single evening during which time he allows two persons who have no intention of having sexual intercourse with each other to occupy a room under circumstances from which a fair inference might be drawn, even by an 18 year old, that they did so intend. To this is added evidence that he may have seen another couple allocated a room by a different person earlier in the same evening and that when the police arrive he produces the key of the cash desk and informs them that he is in charge because his mother is out. Whatever degree of suspicion must attach to the accused to my mind it would be going altogether too far to say that the Crown has, by this evidence, discharged the onus laid upon them. Yet this, coupled with the evidence of possession of the register, is the only evidence upon which the magistrate could have based his finding (a) that the accused was aware that the premises was a resort for prostitutes plying their trade and (b), that the accused permitted the premises to be so used. I realize that on the principles which I have tentatively suggested in relation to what must be proved to satisfy S.12 it could be said that if the magistrate was satisfied on the evidence as a whole that the accused knew that the Pink Apartment was run as a brothel then it could be argued that if he also knew that Julie (P.W.3) was still in the premises when he took over that morning and that she had taken a room to use it for illicit sexual intercourse earlier in the evening he was permitting that use. This would be the very minimum on which a conviction could follow but the evidence is unsatisfactory on the vital point of Julie's presence and the accused's knowledge of it. It was assumed that accused saw her and overheard what the woman in charge said to her. But simply to say that he "was present" at the time, to my mind, falls short of the high standard of proof necessary to show beyond reasonable doubt that he saw her and her companion, heard their request and observed them being given a room. There was no cross-examination on this point but it was no part of Mr. Gunston's duty to complete the Crown's case. So far as Mary (P.W.6) and the other "guests" found there are concerned there is no evidence other than his position as "apparent" keeper to show that the accused knew they were there. It is reasonable to suppose that a brothel, like any other site of human industry, and notwithstanding the remorseless demands of human concupiscence, must occasionally fall idle. At such a time it does not seem to me that the person standing behind the desk and waiting for further customers is committing any offence against Section 12. I do not think, therefore, that it was possible from the evidence adduced in this case to prove both the accused's knowledge of the nature of the premises and his permitting the premises to be used for the prohibited purpose. If from these facts a fair inference of knowledge as to the premises' nature could be drawn it was still necessary to show that the accused, at the time of his arrest, not only was in charge thereof and knew what those premises were but that he was aware also that they were then being used for the prohibited purpose. But the only certain evidence we have of his knowledge of the use of any part of the premises concern the use being made of the room in which the two police witnesses were which, far from being for the prohibited purpose, was the highly laudable one of detecting just such a user. It is impossible to infer his knowledge of the fact that the other rooms were at that time being so used simply from his manner of dealing with P.W.3 and P.W.4 unless upon the basis that that manner of dealing showed that he must have dealt with other persons in the same way many times before. But this, except in a very strong case, would be to ignore the distinction specifically made in the definition of "keeper" and to infer that he was regularly in control from the fact that on one occasion he was apparently in control. In other words it is wrong to infer permitting for use from knowledge of user when knowledge of user itself is inferred from one instance of permitting for use;unless that one instance is itself accompanied by circumstances which unequivocally show that far from being an isolated instance it is in fact part of a systematic pattern of conduct. Where the evidence is strong as that the case is pitched upon the level of the first of the two alternatives in the definition of "keeper". 23. In the Canadian case of Reg. v. Davidson(5) the court upon appeal found that there was evidence before the magistrate from which he might infer that the accused, who was a clerk in a certain hotel, had knowingly allowed two women, known to him to be prostitutes, to go to a single room for the purpose of sexual intercourse in that room with two men who had casually walked into the hotel without baggage at 2.30 in the morning. There was no other evidence to show that the hotel was a brothel. Addressing himself to these facts at p.54, Stewart J. first refers to the relevant definition in Section 225 of the Canadian Code. That definition is as follows:-
This definition is materially different from the difinition in the Ordinance but the judge's opinion on the minimal evidence necessary to show keeping is very relevant. He says: (p.54)
Later he goes on to say as follows:
To my mind that decision takes close to the limit the right of a court to assume a course of conduct from an isolated instance of conduct. It will be apparent at once that the vital distinction between the circumstances of that case and the circumstances here rests in the fact that in Davidson's case the accused was shown by evidence to be a regular employee at the hotel. I do not think therefore that the way in which the accused in this case dealt with P.W.3 and P.W.4 entitled the magistrate to assume, as I think he must have done, not only that the accused was accustomed to admitting "guests" in this way, but also that he had admitted the very "guests" who were found upon the premises by the police on that occasion. The evidence concerning the girl, Julie, is to my mind quite neutral so far as the accused is concerned. As to the register, to assume that because he was in possession of it for 15 minutes and made use of it once he must have also made the other entries therein concerning that night or that he must have known that they had been made and why they had been made is in the circumstances to let suspicion usurp the place of proof. 24. I am inclined to agree with Mr. Gunston therefore that the magistrate showed some keenness to find evidence where there was none. I confess I have a certain sympathy with him in doing so. The accused, in my view, sailed very close to the wind on this occasion. I think that the magistrate's commonsense approach to the question whether the premises constituted a brothel was amply justified; it may also have been justified on the question of the accused's knowledge of that fact, subject to the reservations I have expressed. But that is as far as the commonsense approach could take him. To go further and say that, on the evidence before him, the accused, as a matter of commonsense, knowingly permitted those who were doing so at the time of his arrest to use the premises as a brothel was to infer what ought to have been strictly proved. Such an inference might have been justified if there had been evidence that the accused was in the ordinary sense the keeper of the premises. There was no such evidence and at that point commonsense intrudes upon an area of complication which, technical though it may be, is certainly not without substance. 25. In the upshot, therefore, I have come to the conclusion without misgiving, though not without some regret, that the learned magistrate in finding that the accused had knowingly permitted the premises to be used as a brothel did so on an evidential base which was not sufficiently solid to support such a finding beyond reasonable doubt. The appeal is allowed. The conviction and sentence are set aside. Representation: Oral judgment reduced into writing. ...(illegible) (1) (1895) 1 Q.B. at p.608 (2) (1963) 3 A.E.R. 630 (3) (1931) 1 K.B. 549 (4) 46 J.P. 312, 313. (5) (28th Canadian Criminal Cases, 44) |