Kwok Hung Fai and Others v. The Queen

CACC000655/1980

Coram: Zimmern, J.

Date of Judgment: 4th November, 1980.

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JUDGMENT

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1. The 1st appellant was convicted of firstly providing massage outside the hours of 8 a.m. and 8 p.m. contrary to regulations 17 and 30(b) of the Miscellaneous Licences Regulations, Cap. 114 and secondly of allowing male persons to be treated by female persons contrary to regulations 17 and 32(b) of the Miscellaneous Licences Regulations, Cap. 114 and the 2nd to 4th female appellants were convicted of aiding and abetting him in the commission of those offences.

2. Regulation 30(b) reads:

"Every person holding a licence under this Part shall observe the following conditions, and such special conditions as the licensing authority may in his discretion impose which shall be endorsed on the licence -

3. As I read regulations 17 and 30 they impose an obligation on a licensee to see to it that no massage or treatment be given outside the permitted hours and if given it does not in the least matter whether the licensee knew or not for he would have failed to observe a condition of his licence and committed an offence thereby. The 1st appellant was however not charged with failing to observe the condition of his licence but wrongly charged with providing massage outside the permitted hour. Amendments were not made in the Court below and I am not going to make them now. The convictions against all the appellants on the 1st charge are quashed and the fines imposed are set aside and if paid to be returned.

4. In respect of the second charge of allowing male persons to be treated by female persons the Crown concedes that this is not an absolute offence. It is common ground between counsel and it has been clearly found by the magistrate that the 1st appellant licensee did not know that male persons were being treated by female persons who were his employees in the said premises therefore he could not have been said to have personally allowed it.

5. Be that as it may the provision of section 8 of Cap. 114 clearly stipulates that where a licensee would be liable under the regulations to any punishment for any act he shall be liable to the same punishment for every similar act of any servant employed by him. Though the 1st appellant did not have the actus reus, it is imputed to him as licensee by the acts of his servants. The learned editor of the 4th Edition of Smith and Hogan on Criminal Law puts it thus at p.147:-

"In those cases where it is only the licensee, keeper of the refreshment house, or other designated person in whom it is an offence to do the act in question, it is apparent that the licensee, etc., who is held vicariously liable is a principal for he alone possess the personal characteristic which is an essential part of the actus reus and no one else is qualified to fill that role. The servant who actually performs the act is plainly incapable of being a principal, but it seems that he may be convicted as an abettor, strange though this appears when he is the only participant in the crime who is present."

6. Accordingly the appeals against this charge are dismissed.

Representation:

J. Bleach (Haldane Midgley & Co.) for appellants

J. Chandler for Crown