HKSAR v. Ching Chui Shan Patsy

[English Translation]

HCMA 1030/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1030 OF 2005

(ON APPEAL FROM ESCC NO. 2010 OF 2005)

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BETWEEN

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Before: Hon Tong J in Court

Date of Hearing: 25 January 2006

Date of Judgment: 6 March 2006

Date of Handing Down of Reasons for Judgment: 28 March 2006

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REASONS FOR JUDGMENT

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BACKGROUND

1.The appellant, Ching Chui Shan Patsy (the second defendant at trial) was charged with one count of managing a vice establishment, contrary to section 139(1)(b) of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong.  The particulars of the charge were that, between 24 February 2005 and 27 February 2005, the appellant managed the premises known as Ka Lai Wah Wong Kung Finnish Sauna House (transliteration) (嘉麗華皇宮芬蘭館) (hereinafter “the Sauna House”) situated on 3^rd Floor, Hang Ying Building, 318-328 King’s Road, North Point, Hong Kong, which premises were kept as a vice establishment.

2.The appellant pleaded not guilty to the charge.  She was convicted of the offence after trial and was sentenced to 6 months’ imprisonment.  She now appeals against conviction and sentence.

PROSECUTION’S CASE

3.At trial, the prosecution called a total of five witnesses, all of whom were police officers.  PW1, PW2 and PW3 had, posing as customers, visited the Sauna House at different times in order to conduct investigations.

(1)     PW1’s investigation

4.PW1 arrived at the Sauna House at about 11 p.m. on 24 February.  He said that while he was waiting at the restroom, he noticed from the price list that $408 was charged for massage service.  Later, the appellant turned up and indicated to him that a “young” and “pretty” masseuse could be provided and that the basic charge plus “disbursement” for two hours’ service was $550.

5.While he was waiting in the room, a young girl came in.  She covered the glass panels on the door and wall with towels and then proceeded to massage PW1.  About 10 minutes later, that masseuse offered him a choice between sexual services set A and set B.  The former would cost $550 and the latter $734.  PW1 selected set A.  When the masseuse was about to masturbate PW1, he declined the service by making up an excuse that he was not feeling well.  The masseuse then said the charge would still be the same.  PW1 made payment with a pre-marked banknote and then left the premises.

(2)     PW1 revisited the Sauna House

6.Shortly after 8 p.m. on 26 February, PW1, posing as a customer again, went to the Sauna House.  While he was in the restroom, a male staff greeted him, saying that he could introduce “young”, “pretty” masseuses to him.  Later, the masseuse who massaged PW1 offered him a choice between set A and set B, and this time, PW1 said, he selected set B.  However, when the masseuse was to provide sexual services to him, he again requested her to stop, saying that he was not feeling well.  He said that when he went to the counter, he mentioned that $734 was too expensive.  The appellant then turned up and said to him that the price had been agreed upon by both parties.  PW1 then made payment and left without disputing any further.

7.PW1 added that he did not know how many rooms there were in the Sauna House, although he estimated there were about ten-odd staff members.  He paid no particular attention to the contents of the notice in the massage room.  Nor did he ask for any receipt in the course of the investigations.

(3)     PW2’s investigation

8.PW2, posing as a customer, arrived at the Sauna House at about 11 p.m. on 26 February.  At the entrance, he saw the price list which stated that the charge for two hours’ massage was $408.  While he was waiting in the restroom, the appellant asked him whether he needed a “pretty” and “young” masseuse with a good figure.  PW2 was subsequently led to Room 14.  A masseuse was already waiting inside the room.

9.The masseuse covered the glass panel on the wall with a towel and massaged PW2 for 30 minutes.  She then offered PW2 a choice between sexual services set A and set B.  PW2 selected set B.  The masseuse then switched off the light inside the room and performed the service on him.  He later requested her to stop.  She then massaged him for another 15 minutes and left.  PW2 changed his clothes, paid $734 and left.

(4)     PW3’s investigation

10.PW3 was another police officer.  Posing as a customer, he arrived at the Sauna House shortly after 4 p.m. on 26 February.  A staff member arranged for him to take a shower, change his clothes and receive massage service.  He said that during the process no one provided any sexual service.  Before he left the Sauna House, he complained about the bad manner of the masseuse and asked for her identification number.  He said he could not recall clearly whether anyone had asked him what he expected of the masseuse.

EVIDENCE OF THE OFFICER-IN-CHARGE OF THE OPERATION

11.PW4 was the officer-in-charge of that particular operation.  She said that a total of five undercover investigations were arranged between 24 and 26 February.  On three of the five occasions, sexual services were found to have been provided.  On one occasion, no such services were provided.  On the fifth occasion, the investigation failed because the Sauna House did not carry on business by reason of certain labour dispute.  She mainly instructed all the undercover officers to pay particular attention to whether there was any prostitution at the Sauna House and to the surrounding circumstances, but she did not specifically instruct them to pay particular attention to the charges.  She assigned police officers to visit the Sauna House at different times with a view to investigating the situations at various times.

INVESTIGATION OF THE OFFICER IN CHARGE OF EXHIBITS

12.PW5 was responsible for dealing with the exhibits.  On the night of 27 February, he carried out a search of the Sauna House and confirmed that notices had been posted inside Rooms 11 and 20 stating that immoral conduct was against the law.

DEFENCE CASE

13.The appellant testified at trial.  She admitted that she was a manageress of the Sauna House, responsible for managing the staff in the restroom and assigning masseuses according to the customers’ needs.  She said there were a morning shift and a night shift at the Sauna House, with two managers on duty on each shift.  She could not recall whether she greeted PW1 on 24 February.  Nor was she sure whether she had greeted PW2.  However, she recalled that on 26 February she did go to the cashier counter to deal with PW1’s complaint.  The appellant gave explanations and made denials of the allegations made against her by the prosecution witnesses.

GROUNDS OF APPEAL

14.In summary, there are five grounds of appeal against conviction:

(1)     In finding that the Sauna House was a vice establishment, the magistrate did not consider, sufficiently or at all, PW3’s evidence.

(2)     In finding that the appellant knew there was prostitution, the magistrate misunderstood PW2’s evidence to be that the appellant had said “set B service was $734”.

(3)     In finding that the appellant knew there was prostitution, the magistrate erroneously considered as immaterial the inconsistency between the charge requested by the masseuse for providing sexual services to PW2 and the charge allegedly put forward by the appellant.

(4)     The magistrate erred in allowing PW1 to repeat the explanation given to him by the masseuse on why other staff members did not offer a choice between set A and set B.

(5)     The magistrate failed to consider whether the Sauna House was kept as a vice establishment.

ANALYSIS OF THE GROUNDS OF APPEAL

15.In my view, Grounds 1 and 5 merit consideration, whereas the remaining Grounds only involve unimportant factual details which have no significant impact on the judgment.  In respect of PW3’s evidence, the magistrate made the following assessment:

23.       Regarding PW3, he did, at about 5 p.m. on 26 February, go to the ‘Finnish Sauna House’, posing as a customer.  According to what he said, no one offered him any sexual service.  PW3 said that he had already forgotten most of the details.  There are a lot of uncertainties in the evidence given by him, and he has obviously confused some of the facts, especially in respect of how many times and on what dates, etc. he had been to the ‘Finnish Sauna House’.  I consider his evidence unreliable and do not accept what he said.  In my judgment, however, this should not affect the credibility of PW1 and PW2, because PW3’s investigation did not have any direct link with PW1 and PW2.

16.The magistrate pointed out that PW3 was unreliable although it would not affect the evidence of PW1 and PW2.  However, the magistrate had not completely ignored what PW3 said.  When he considered whether the Sauna House was a vice establishment, he had taken into account what PW3 said, i.e. that no one had offered him any sexual service.  Nevertheless, the magistrate considered that the time at which PW3 conducted the investigation was different from that of the other witnesses’ investigations.  The latter conducted the investigations at night, whereas PW3’s investigation took place in the afternoon.  For this reason, the magistrate concluded that PW3’s evidence did not affect the finding that the Sauna House was a vice establishment.

17.The charge covered the period from 24 to 27 February 2005, and no separate time periods had been specified in the particulars of charge.  The officer in charge of the operation also deliberately arranged for police investigations to be conducted at various points of time in order to ascertain whether the Sauna House was a vice establishment.  Conversely, had PW3 also said that the Sauna House offered sexual services, I believe that the magistrate would not have formed the view that such evidence would not affect the finding on whether the Sauna House was a vice establishment.

18.On the other hand, I think that, as a matter of principle, the magistrate should have considered all the evidence, including what PW3 said, before deciding whether the Sauna House was a vice establishment, instead of forming a conclusion on the basis of the evidence of some of the witnesses and then proceeding to consider whether there was any problematic evidence which would affect or rebut such conclusion.  By adopting the latter approach, the judge might be perceived as judging by first impression.

19.Although the magistrate did not seem to have taken a completely balanced approach in dealing with the evidence in this respect, his decision ultimately rested on the credibility of the witnesses.  And in light of the principle set out in AG v. Tong Ping Wing [1982] HKLR 1, I do not consider the irregularities raised by the appellant to be sufficient to quash the conviction.  However, on the question of whether the Sauna House was kept as a vice establishment, I consider that, on the basis of the relevant authorities, the appeal should be allowed.

THE ELEMENT OF “KEEPING”

20.In the recent case of HKSAR v. YEUNG Mei Ling, HCMA 1024/2005, Deputy High Court Judge Poon pointed out that whether or not a place was “kept” as a “vice establishment” went to a fundamental element of the charge, and in this respect it was for the magistrate to consider the relevant evidence and make a finding.  In that particular case, as the magistrate had failed to address the issue of whether the relevant premises were “kept” as a “vice establishment” before he proceeded to deal with the “managing” element, the Deputy Judge had no alternative but to quash the conviction (see page 7 of the written Judgment)

21.As a matter of fact, the same issue arose in the much earlier case of R v. Ling Kin Cheong [1996] 3 HKC 422, where Leong J (as he then was)  made the following decision on the issue:

In the present case, the magistrate in his findings was concentrating on the element of ‘used wholly or mainly for prostitution’.  He did not seem to have addressed his mind to the issue whether there were surrounding circumstances to show that the premises had been so used prior to the occasion of the user by the two police officers.  Thus, he had not considered the essential ingredient of whether the premises were ‘kept as a vice establishment’.  Apart from this, except that the premises were divided into rooms, there was no evidence as to show a pattern of such user of the premises.  The conviction cannot stand.  The appeal must be allowed and the conviction quashed.  The sentence is set aside.  The Crown quite rightly has not sought a retrial.

22.On the other hand, if the magistrate has made a finding in respect of the element of “keeping” and that finding is not unsupported by evidence, the Court of First Instance will normally not interfere (see R. v. Cheong Luen Shing [1994] 3 HKC 451).  Bewley J, in dismissing the appeal in that case, said:

The magistrate found the inspector and the two police constables to be honest and trustful witnesses.  He acknowledged the discrepancies in the evidence of the police constables bud did not consider these to be material.  He was satisfied that the appellant was the person in charge of the villa at the time and was consequently the manager.  He cited the authorities and concluded that it was an irresistible inference that the villa was being kept as a vice establishment on 15 January.

…

…        An event which took place once or a number of similar events which took place on a single night might be insufficient to establish that the premises were being ‘kept’ as a vice establishment.  But it was not right to say that evidence of the surrounding circumstances could never lead to a proper inference that the events observed were not merely isolated incidents but indicated a degree of continuity.   The magistrate was well aware of the requirement to prove such continuity and there was sufficient evidence to support his finding. … (emphasis added)

23.I have read through the magistrate’s Statement of Findings once and again.  Although he did sum up and analyze the evidence very carefully, he had made no mention of the element of “keeping”.  As was the case in YEUNG Mei Ling cited above, the magistrate, after determining whether the Sauna House was a “vice establishment”, proceeded to consider other issues such as whether the appellant had any knowledge and whether she had taken part in the management of the Sauna House.  In his conclusion, the magistrate only stressed that the Sauna House was a vice establishment and that the appellant knowingly took part in the management of the Sauna House.  Throughout, the magistrate had never addressed the issue of “keeping”.

24.In this respect, the respondent made the following reply and cited the case of Secretary for Justice v. Lee Cho Keung & Other in support of her submission:

6.         In respect of one of the elements of the charge – ‘kept’ as a vice establishment, the respondent agrees that the magistrate failed to mention that element both in his reasons for verdict and in his Statement of Findings.  Nevertheless, a magistrate does not have to record each and every legal principle in his findings or set out how he arrived at those findings.  Furthermore, in the present case, the magistrate must have been aware of the relevant element because the defence counsel had already mentioned that element in his closing submissions.  Further, the magistrate emphasized once and again in the judgment that the police officers concerned had visited that Sauna House on three separate occasions and found prostitution on those three occasions. Therefore, even though the magistrate did not mention that element, the facts show that he had indeed taken it into consideration.  Besides, the evidence in this case is sufficient to prove that the Sauna House was being kept as a vice establishment.  Accordingly, the magistrate’s failure to mention that element would not render the conviction unjust.

25.The approach taken in Lee Cho Keung was clearly different from that taken in other cases such as Li Kin Cheong.  In my view, where a magistrate overlooked a fundamental element of the offence charged in forming his judgment, then on appeal the Court of First Instance should not decide how the magistrate would have dealt with the issue had he applied his mind to it, because otherwise the court would appear to be making a supplemental judgment for the magistrate.  However, even if the Court of First Instance does have the right to do so, I cannot say with certainty that, on the evidence in the present case, the magistrate would or should have found that the element of “keeping” was present.  Lee Cho Keung differs from the present case in terms of the nature and strength of evidence.  I cannot infer whether there would or should have been other conclusions had the magistrate considered all the evidence of the undercover police witnesses from the perspective of “keeping”.

THE OUTCOME OF APPEAL

26.For the above reasons, I allow the appeal.  I order that the conviction be quashed and the sentence set aside.

27.All applications arising from this judgment can be made in writing by either party within 14 days of handing down of the Reasons for Judgment.

Ms Kathie Cheung, Government Counsel, for the HKSAR

Mr Eric Kwok, SC instructed by Andrew Lam & Co, for the appellant

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor