HKSAR v LEE ON YIP (李安葉)

[English Translation – 英譯本]
HCMA 1137/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1137 OF 2005

(ON APPEAL FROM KCCC NO. 3502 OF 2005)

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BETWEEN

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Before: Hon Deputy Judge Barnes in Court

Date of Hearing: 17 August 2006

Date of Judgment: 31 August 2006

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JUDGMENT

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Background

1.  The Appellant was convicted after trial on 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, and was sentenced to 6 months’ imprisonment. He appealed against conviction and sentence but subsequently withdrew the appeal against sentence.

Prosecution case

2.  PW1 and PW2 are police officers. They were assigned to pose as customers and visit the premises in question for the purpose of investigating whether prostitution services were provided thereat. Upon arrival at the premises, they rang the doorbell and Cheng (a co-defendant) opened the door. Cheng invited the two officers to enter the premises and sit on the sofa.

3.  Thereafter, the Appellant walked out from the corridor outside the kitchen and asked the two witnesses, “You two want to do a massage?” PW2 said, “Yes, how much?” The Appellant replied, “$250 for one-and-a-half hour, [including] massage plus ‘letting off fire’.” PW2 asked what “letting off fire” meant and the Appellant said “it means hand-job”. Both witnesses understood that “hand-job” meant masturbation service. After PW2 agreed, the Appellant pointed to a girl surnamed Cheng (“Cheng”) and asked, “Is this girl ok for you?” PW1 replied, “ok for me”. The Appellant then instructed Cheng to take good care of PW1. The girl said she understood.

4.  The Appellant then said to PW2, “The other pretty girls are working, let me call some pretty girls from outside for you.” The Appellant then made a call with her mobile phone. She asked through the phone, “You have any girls on your side? … no?” After the Appellant hung up, she said to PW2, “No one is available yet. I still have another girl here, she will be free in ten minutes, you wait for a while.” Thereafter, Cheng took PW1 to Room 2 and PW2 stayed in the living room to chat with the Appellant.

5.  After PW1 and Cheng entered Room 2, Cheng gave him a towel and asked him to take a shower. After the shower, PW1 took off his clothes and lay down on the massage bed as directed by Cheng. Cheng asked PW1, “You want to have a massage first or let off fire first?” PW1 opted for a massage. While Cheng was massaging his back, PW1 notified his supervisor with his mobile phone, using a pre-arranged method.

6.  PW2 and the Appellant were chatting in the living room all along. Subsequently, a man and woman walked out from Room 1. The man left the premises immediately after stepping out of the room. The woman (later known to be Lam Siu Ying) walked to the living room. The Appellant pointed at the girl surnamed Lam (“Lam”) and asked PW2, “Is this girl ok?” PW2 replied, “Good.”

7.  Lam then took PW2 to Room 1. After entering the room, Lam gave him a towel and asked him to take a shower. After the shower, PW2 took off his clothes and lay down on the massage bed as directed by Lam. PW2 notified his supervisor with his mobile phone, using a pre-arranged method. Lam then asked PW2, “You want to have a massage first or letting off fire first?” PW1 opted for a massage. Lam then started to massage PW2’s back.

8.  Thereafter the police’s support team arrived at the scene. PW1 and PW2 revealed their identity to Cheng and Lam and reported the case to their respective supervisors in the presence of the Appellant.

9.  PW3 was responsible for arresting the Appellant. Under caution, the Appellant said, “I am also a masseuse, but they said I was not suitable, so I found two other pretty girls for them.”

Defence case

10.  The Appellant stated that she was in the kitchen when someone rang the doorbell. When she stepped out from the kitchen, she saw PW2 and asked him if he wanted a massage. PW2 replied “Yes” and inquired about the charges. The Appellant then explained that the service was “$250 for two hours, [including] oil massage, massage on the head, legs and feet.” The Appellant also explained that only two masseuses were available at that time and that she herself could provide the service for PW2, but there was no room available yet. However, PW2 seemed to feel that the Appellant was not good enough and said “not ok.”

11.  At that time, Lam Siu Ying was working in another room. Upon hearing the above conversation, she walked out of the room and asked PW2 “How’s that?” PW2 then pointed at Lam and said “I’ll take this one.” Lam told PW2 he had to wait for 10 minutes and PW2 agreed to wait. Throughout the waiting period, the Appellant watched television in the living room.

12.  Thereafter, other police officers arrived at the scene. The Appellant was still sitting in the living room. The police arrested the Appellant. The Appellant said to the police officer, “I am also a masseuse, but they said I was not suitable, so I found two other pretty girls for them.”

Grounds of appeal

13.  Mr Lau, Counsel for the Appellant, has submitted one written ground of appeal, namely that the Magistrate erred in ruling that the subject premises were wholly or mainly used as a vice establishment.

14.  Mr Lau submitted that the Magistrate had, in ruling that the subject premises were wholly or mainly used as a vice establishment, considered the following factors:

(1)  there were no facilities at the premises apart from massage beds;

(2)  the Appellant only provided one type of service: massage and letting out fire; and

(3)  the services provided at the premises had invariably included masturbation.

15.  Mr Lau contended that there was no evidence in the present case to support the allegation that the premises were wholly or mainly used as a vice establishment. He pointed out that there were no pornographic signs at the premises; the facilities at the premises were incongruous with the premises being wholly or mainly used as a vice establishment; the premises had been converted from a residential unit to a massage parlour, and there was a kitchen in the unit; condoms were found in only one room; not every room had toilet paper and no toilet paper was found in Rooms 1 and 2 where PW1 and PW2 were; toilet paper was only found in Room 3 and there was no evidence that anyone had been using this room; there was no evidence on the type of bed used in Room 3; and there was no evidence to show any toilet paper tainted with semen having been dealt with at the premises.

16.  Mr Lau contended that the Magistrate erred in ruling that the Appellant only provided one type of service. Mr Lau submitted that PW1 and PW2 had never asked the Appellant whether there were other services available, and that in Hong Kong, “massage service” may include other services such as facial, cupping and scrapping. Mr Lau pointed out that the evidence did not indicate that PW1 and PW2 had received any sexual service: the masseuses only asked them to “take off their clothes” but did not ask them to “take off their pants”; and there was no evidence of any touching or indecent act being performed inside the rooms. There was also no evidence to show what had happened between Lam and the other customer in Room 1 and what kind of service Lam had provided. The police could not find any semen nor any toilet paper tainted with semen in Room 1. There was also no evidence that the customer who left the premises had paid for the service.

17.  Mr Lau submitted that, if the evidence showed that the premises might have been used other than as a vice establishment, then the premises might not have been wholly or mainly used as a vice establishment, and therefore the conviction would be unsafe and unsatisfactory.

Respondent’s reply

18.  Mr Lai, Senior Government Counsel for the Respondent, replied by submitting that the main issue in the present case was whether there was substantive evidence upon which the Magistrate could infer that the premises were wholly or mainly used as a vice establishment. Mr Lai submitted that the evidence in the present case – including: once PW1 and PW2 entered the premises, the Appellant immediately took the initiative to offer them sexual services; the Appellant’s conduct, which clearly showed that she was the person responsible for arranging girls to provide sexual services; and the two masseuses respectively asked PW1 and PW2 inside the room whether they “want to have a massage first or let off fire first” – enabled the above inference to be made.

Judgment

19.  In determining whether the Appellant “managed” the premises “kept” as a “vice establishment”, the court has to first decide whether the premises were a “vice establishment”. If the answer is in the affirmative, it is then necessary to consider whether the premises were “kept” as a “vice establishment”, followed by whether the Appellant “managed” the premises.

20.  The present appeal focuses on the issue of whether the premises were a “vice establishment”.

21.  Section 117(3) of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong, defines “vice establishment” as follows:

(a)  the premises, ... or place are or is used wholly or mainly by 2 or more persons for the purposes of prostitution; or

(b)  the premises, ... or place are or is used wholly or mainly for or in connection with the organizing or arranging of prostitution.

The present case calls for a consideration of the definition in section 117(3)(a).

22.  In considering whether certain premises are wholly or mainly used as a “vice establishment”, the court must take into account the use of the premises and not just the acts of the relevant persons. Each case provides its own background for the court’s consideration: see R v. Wong Chi Hung & Others [1982] HKLR 361 and HKSAR v. Chan Ching Keung & Another, HCMA 314/2006.

23.  At paragraph 65 of the Statement of Findings (page 31 of the Appeal Bundle), the Magistrate had this to say:

65.  The premises involved in the present case are a residential flat, in which there were no facilities except massage beds. The Defendant only provided one type of service – massage plus ‘letting off fire’. When the Defendant and the two police officers were negotiating, Lam was not present. However, before providing the service, Lam asked PW2 whether he ‘want to have a massage first or let off fire first?’ It is obvious that the services invariably available at the premises included masturbation. The only irresistible inference is that the premises were used as a ‘vice establishment’.

24.  I had an opportunity to look at a sketch (Exhibit P24) and photos relating to the present case. Room 1 contained a massage bed, towels, massage ointment and baby oil. Room 2 contained a massage bed, massage ointment, massage oil and 6 condoms. No toilet paper was found in these two rooms. Room 3 contained a bed, towels, baby oil, massage ointment, 7 rolls of toilet paper and plastic bags. It is clear from the layout of and facilities at the unit that it had been converted from residential to massage use. The evidence does not show that it was a legal massage parlour.

25.  I have carefully considered the Magistrate’s findings of fact. After the two “undercover” police officers entered the premises, the Appellant asked them if they wanted a massage. When they answered “Yes, how much?”, the Appellant said “$250 for one-and-a-half hour, [including] massage and letting off fire.” Thereafter, the two girls responsible for taking care of the two prosecution witnesses each asked the witnesses whether they “want to have a massage first or let off fire first?” In particular, Ms Lam, who took care of PW2, was not present when the Appellant was negotiating with the two witnesses about the charges. Although the evidence showed that Lam was in Room 1 with another man when the two witnesses arrived, it is not known what happened inside that room.

26.  In my judgment, on the facts as found by the Magistrate, although the two undercover police officers had not actually received masturbation service and had secretly informed their supervisors when they were being massaged, the Magistrate was fully entitled to draw the only reasonable inference that prostitution took place at the premises.

27.  I rule that, on the evidence accepted by the Magistrate, the prosecution had proved beyond reasonable doubt that the premises fell within the meaning of “vice establishment” under the relevant legislation, i.e. the premises were used by two or more persons mainly for the purposes of prostitution.

28.  Having said that, I am concerned whether there is sufficient evidence to prove that the premises were “keptmanaged” as a “vice establishment”. At paragraph 65 of the Statement of Findings, the Magistrate concluded that “the services invariably available at the premises included masturbation. The only irresistible inference is that the premises were used as a ‘vice establishment’.” The Magistrate went on to say, at paragraph 66: “For the above reasons, I rule that the prosecution has proved its case beyond reasonable doubt. The [Appellant] is convicted.”

29.  The Magistrate did not use the term “keepmanage” in his Statement of Findings. As a magistrate with extensive experience in dealing with cases of “managing” and “keeping” and “managing” “vice establishments”, he must have been conversant with the element of “keepingmanaging”. This element was also referred to by Counsel for the Appellant in his closing submissions. It would seem that when the Magistrate said “[it] is obvious that the services invariably available at the premises included masturbation”, he was using the word “invariably” to express the element of “keepingmanaging”. The question is: was the relevant evidence sufficient to establish that the premises were “keptmanaged” as a “vice establishment”.

30.  In R v. Wong Chi Hung & Others cited above, McMullin V-P said:

… What the Crown must show in order to bring home a charge under section 139(a) or (b) is, firstly, that the premises were being kept in that manner and, secondly, that the defendant was in the position of keeper, (para. (a)), in relation thereto or, (para. (b)), that he was seen to be managing, or assisting in managing or otherwise in charge or control of the premises. The first of those elements requires evidence sufficient to show a pattern of main user which will usually involve some degree of persistence in time beyond what would be supplied by evidence of a single transaction; the second need not. (at 365F)

… The offence is one of a continuing nature. It does require the showing of something in the nature of persistent or habitual user of premises for any of these forbidden purposes falling within the language of paragraphs (a) or (b) of subsection 3 of section 117. If that is not established, the charge fails. If it is established, it is necessary to show, in addition, as against the person charged, only that his connection with the premises was such as to lead beyond reasonable doubt to the conclusion that he knew the nature of the activities and had given support to them. … To put the matter more succinctly, persistent user must be shown of the premises but need not be shown in relation to the conduct of the individual charged. (at 368D)

31.  According to the above case, to prove that premises have been “keptmanaged” as a “vice establishment”, the prosecution must adduce sufficient evidence to prove a pattern of main user which will usually involve some degree of persistence. Evidence of a one-off transaction is insufficient for this purpose.

32.  McMullin V-P also said:

The first of those elements, no doubt, will usually be proved by evidence which results from surveillance of the premises over a relatively protracted period. But it might also, in a given case, be established by proof of what has been observed upon a single occasion where the circumstances are such as to yield no other conclusion than that conduct of the forbidden kind was not only then going on but (from the layout of the premises, documents, registers, books of account and the like) that the premises had been so used, whether by the accused or some other person, for a considerable period prior to the police raid or whatever intrusion had brought the evidence to light. (at 365I)

33.  In other words, in the absence of supporting evidence, a one-off transaction does not suffice to prove that the pattern of main user of the premises was as a “vice establishment”. However, if there is other supporting evidence such as account books, the layout of the residence, registers and other documentary evidence, a single operation would be sufficient to prove the above.

34.  Turning to the present case, was there sufficient evidence to show that not only on the day in question, that is when the two undercover police officers took action, but for a considerable period of time before that day, the premises had been used for prostitution, so that it could be proved that the main pattern of use of the premises was as a “vice establishment”? After careful consideration, I rule that the relevant evidence only served to prove that there was prostitution on the day of the alleged offence and was insufficient to support an only reasonable inference that the premises were “managedkept” as a “vice establishment”.

36.  For the above reasons, the appeal is allowed, the conviction quashed and the sentence set aside.

Mr Derek Lai, Senior Government Counsel, for the HKSAR.

Mr Nicolas Lau, instructed by Au, Thong and Tsang, for the Defendant.

Translated by Mr. Edmund Cham, Solicitor