Tam Wing-him v. The Queen
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CACC000639/1978
----------------- Coram: Li, J. Date of Judgment: 2nd August, 1978 ----------------- JUDGMENT ----------------- 1. This is an appeal against conviction of the offence of breach of licence conditions contrary to Regulation 29(1)(a) of the Dutiable Commodities (Liquor) Regulations, Chapter 109. The charge accuses the appellant of that on the 28th of April, 1978 at Kowloon Star Night Club of 655, Nathan Road, 2nd Floor, being the licensee of that night club, did permit the employment of a Chinese girl CHOI Yun-mei whose age stood then at 13 years and 5 months old in connection with the business carried on therein. 2. The facts are simple and straightforward. On the 28th of April 1978, about five minutes past seven in the evening, there was a raid on the premises by the police. CHOI Yun-mei, the girl, was found to have made up and beautifully dressed, sitting on a sofa. She was asked whether she was employed there. She first denied it. However, police suspicion was aroused and she was brought back to the police station. Then it was found that she was then aged 13 years and 5 months old. 3. At the hearing the girl's evidence was that she did try to obtain employment in that night club sometime previously and she was refused employment because she failed to show her identity card or to prove her age. However, she later pretended that she was sixteen. By making that false representation she was employed as an employee there at the weekly wages of about two hundred dollars. This evidence was corroborated by cross-examination of counsel then representing the appellant and by the defence evidence of LEE Fai, the second defence witness. 4. In her evidence this girl said that:
That is the sum total of the evidence upon which the appellant was charged. 5. The defence case at the hearing was this. The appellant was at the time not in Hong Kong, and indeed, for months before, he had left the management of that night club entirely to the witness LEE Fai. He said that he had been paid nothing and had no profit. Nor did he pay any outgoings. However, LEE Fai has not been registered as the person who has taken over, or the authorized person. 6. LEE Fai's evidence was that he never employed the girl. In part of his evidence, it read:
That was found by the learned magistrate to be untrue. The magistrate refused to believe and reject LEE Fai's evidence that he did not employ the girl. 7. Regulation 29, paragraph (1)(a) reads as this:
8. My first reaction, under the circumstances, was whether the appellant, because of his absence from the premises on the day and indeed on days before that, could have been held vicariously liable for the offence, if there was any offence; and secondly, whether the element of mens rea must be required as part of the ingredients for that charge. However, these are resolved. In fact, such questions if I may say so, have quite rightly been agreed between the learned counsel for the appellant as well as counsel for the Crown. Counsel for the appellant concedes that there can be vicarious liability. It is quite clearly supported by the cases of Linnett v. Metropolitan Police Commissioner(1), Regina v. Winson(2) and Vane v. Yiannopoulles(3) to which cases my attention has been directed by counsel for the appellant. On the question of mens rea as being one of the required elements for the offence, it is to be found in the case of Sweet v. Parsley(4). Crown counsel also concedes that. 9. Thus the questions of law are disposed of. The crux of the matter, as counsel for the Crown suggested, is indeed a question of fact. First of all, it must be decided whether the magistrate had reason to find that LEE Fai employed the girl CHOI Yun-mei and secondly, at the time that he employed her, or on the material day, whether LEE Fai knew the girl was under fourteen. These are the two important questions because it has to be proved that LEE Fai had guilty knowledge. If LEE Fai had guilty knowledge and has committed an offence, there is no question that the appellant would be vicariously liable. 10. As to the question of employment, I am satisfied that the learned magistrate had ample reason to come to the conclusion that the girl was employed at the night club in question on that day, namely, the 28th of April, 1978. According to the girl she had been employed since the 21st of April, 1978 and she had been there for a week and she was there on the 28th of April, 1978 during the police raid. She was working there at the wages of approximately two hundred dollars per week. That was not challenged by cross-examination. Indeed, she said that when she first went to see someone, the management, in the premises to obtain a job, she failed to obtain one because they refused to employ her. Further LEE Fai said that he refused to employ her because she refused to show her identity card. By so saying he supplied the evidence that he doubted the girl's age and that the girl was in the premises for employment. For this reason, I repeat again that the learned magistrate had good reason to find that LEE Fai did employ this girl. 11. The only question was that at the time of the employment whether LEE Fai knew the girl was under fourteen or not. As the question of knowledge is very much a state of mind of an individual, it must be judged by the surrounding circumstances to find out whether, subjectively, this person had the knowledge. 12. There is, I must confess, very scanty evidence and practically no evidence as to show that anybody knew the girl's age at the time. However, one very pertinent point of evidence came to light was that the girl had been to the premises to obtain employment before LEE Fai and LEE Fai refused to employ her because she refused to show her identity card. It was found by the learned magistrate that LEE Fai did employ her. LEE Fai must have had a look at her identity card, otherwise he would not be employing her. If he had a look at the identity card, he should be able to detect the girl's age. Either LEE Fai was telling a lie in saying that he never saw the girl's identity card, or that he deliberately declined to see her identity card when he employed her. In other words, LEE Fai knew, or should know, even subjectively, the girl's age. The remark by the learned magistrate in page 15 of the Statement of Findings, which I presume was meant for the appellant, is equally applicable to LEE Fai. In that he said:
13. I find that in the present instance the very fact that LEE Fai closed his eyes from the identity card, closed his eyes to any further inquiry as to the girl's age, showed that he knew that the girl was under fourteen. He did not want to know that the girl was under fourteen. If that is the case, he deliberately shut his eyes from the girl's age. For these reasons, I find that the appeal must be dismissed.
Representation: Donnelly (H.H. Lau & Co.,) for appellant Dicks C.C. for respondent (1) 1946 KB 290 (2) 1969 1 QB 371 (3) 1965 AC 487 (4) 1970 AC 132 |