HKSAR v. Huang Lin Fang

[English Translation – 英譯本]

HCMA 146/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 146 OF 2008

(ON APPEAL FROM KTCC NO. 5794 OF 2007)

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Before: Hon Barnes J in Court

Date of Hearing: 27 August 2008

Date of Judgment: 5 September 2008

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J U D G M E N T

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1.The Appellant was charged with one count of “soliciting for an immoral purpose”, contrary to section 147(1)(a) of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong.  She pleaded not guilty.  She was convicted after trial and fined $2,000.  She now appeals against conviction.

Prosecution’s case

2.The prosecution’s case was straightforward.  PW1 and PW2 were police officers.  At the material time, they posed as guests and visited the karaoke nightclub in question.

3.The two police officers were led to Room 1 of the nightclub by a female receptionist.  Later, a female staff member arranged for the Appellant to serve PW1, and then arranged for another female to serve PW2.  The two officers chatted, played guessing games and drank with the Appellant and the other female respectively inside Room 1.  In the course of it, the Appellant offered to have a sexual transaction with PW1.

4. As there was no karaoke player inside Room 1, the four of them including the police officers were subsequently transferred to Room 3.  Inside Room 3, the two pairs continued to chat, drink, play guessing games and sing.

5.Later, the abovementioned female staff member entered the room and requested the two officers to pay.  She presented the bill to PW2.  The price was stated to be $780.  PW2 paid with credit card.

6.Subsequently, the Appellant suggested to PW1, “Let’s do it earlier.”  The officer then went with the Appellant to a love hotel on the 3^rd floor to rent a room.

7.The facts also revealed that, when PW1 was inside Room 1, his understanding was that there was no “table-sharing” arrangement, and he would not allow other guests to enter that room.

Defence case

8.The Appellant, who had a clear record, elected not to testify in court or call any defence witness.

The Magistrate’s findings

9.The Magistrate made the following findings:

10.   As regards findings of fact, I have no doubt whatsoever that, as described by PW1, at the time of the offence the Defendant inside Room 1 offered sexual service to PW1 for $390, and eventually the Defendant and PW1 went to a love hotel to rent a room.  They had shower together in the room, in the course of which the Defendant tried to perform oral sex on the officer.

11.  As to the law, Mr Poon [Counsel for the Defendant] submitted that Room 1 of the karaoke nightclub in question was not a ‘public place’ and that, as the evidence in the present case was different from that in HKSAR v MOK Yu-ming & 2 others, HCMA 1079/2000, the conclusion would have been the same even if the court had followed the test adopted by Tong J in that case.

12.  I do not agree with Mr Poon’s submission.  First, the rooms inside the nightclub in question (no matter Room 1 or 3) are no different in nature from the massage rooms at a sauna.  In both establishments, guests are not given the keys to the relevant rooms and cannot disallow members of staff from entering and leaving the rooms.  This applies in particular to the rooms in a nightclub, which staff members enter from time to time to provide services (such as serving drinks to guests and taking away glasses and dishes).  This is common sense.  PW1 did say under cross-examination that there were no other guests inside Rooms 1 and 3 at the material time and that he would object if the nightclub arranged other guests to share the same room with him and PW2.  But on the other hand, I notice there was a glass pane, which was quite large, on the door of each of the two rooms (see Exhibit P3, photos C and E).  I believe that what happened inside the rooms could be clearly seen through the glass panes.  The nightclub obviously did not intend to allow guests to have absolute privacy inside those two rooms.  In addition, Exhibit P5 shows that the nightclub charged its guests on the basis of the number of singing companions provided and the duration of such service.  The invoice made no mention at all of any charge for the rooms or even the price of beverage.  Although the nightclub might already have included the costs of the place and beverage in the charge, it was obvious that the charge was mainly for singing companionship rather than room charge or beverage.  On this basis, the only reasonable inference is that the $780 paid by the two officers was in fact for the service of singing companions.  Had the room charge been made a separate item for payment, this might have strengthened the defence argument (that the room was exclusively for the private use of the two police officers).  But it was not what actually happened.

13.  In fact, the most important legal principle to be derived from the case of MOK Yu-ming is not the detailed discussion on whether massage rooms at a sauna falls within the definition of ‘public place’ under section 117 of the Crimes Ordinance (Cap. 200), but is what Tong J says in paragraph 14 of his judgment:

I accept Mr. Poots’ submission that the section primarily aims at cleaning up the streets, so that members of the public could come and go without being troubled by common prostitutes.  If the statute intends to prevent members of the public from being embarrassed by the approach of prostitutes in the street, there is all the more reason why this law should be applicable in the massage room where members of the public meet with the staff of the establishment for a massage.  When being accosted by a street prostitute, the person may be embarrassed but he could ignore it and walk away, but his situation could be rather awkward when the masseuse makes the offer of an immoral service during the course of a massage.  I could see no basis to say that the legislation does not intend to cover such a kind of mischief.  The concept of public place should not be construed restrictively in this context.

I respectfully agree with Tong J’s observations, and the above judgment is binding on me.  For the above reasons, in relation to the charge in the present case, I have no doubt in ruling that the karaoke nightclub in question was a ‘public place’ [the Magistrate’s remark: Mr Poon did not dispute this in his submissions], and Rooms 1 and 3 at the above address were for the common use of the customers and staff and not for the exclusive and private use of the two police officers at the material time, and were therefore ‘public places’.

14.   In my judgment, the prosecution has established the Defendant’s guilt beyond all doubts.  The Defendant is convicted accordingly.

Relevant law

10.The present case involves sections 147(1)(a) and 117(1) of the Crimes Ordinance, Cap. 200 Of the Laws of Hong Kong.  Section 147(1)(a) provides as follows:

(1)   A person who in a public place or in view of the public ―

(a)    solicits for any immoral purpose; or

(b)  …

shall be guilty of an offence and shall be liable on conviction to a fine of $10,000 and to imprisonment for 6 months.

Section 117(1) defines “public place” (公眾地方) as:

(a)    any place to which for the time being the public or a section of the public are entitled or permitted to have access, whether on payment or otherwise; and

(b)    a common part of any premises notwithstanding that the public or a section of the public are not entitled or permitted to have access to that common part or those premises;

…

Grounds of appeal

11.Mr Lee, Counsel for the Appellant, puts forward the following two grounds of appeal:

Ground 1

1. The Magistrate erred in ruling that the nightclub room in question was a ‘public place’;

(1)   He erred because he had failed to consider (or adequately consider):-

(i) unlike other parts of the nightclub (such as the lobby or washroom), the room in question (while being in use) was not a place which members of the public could freely enter and leave;

(ii)    except the lawful users (or occupiers) of the room or those who were invited or tolerated by such users (or occupiers), any person who entered the room could be asked to leave.

(2)    He arrived at the erroneous ruling because he had taken into consideration inappropriate or irrelevant matters:-

(i) guests were not provided with the keys to the relevant rooms;

(ii)   guests could not disallow staff members of the establishment from entering and leaving the room;

(iii) on the door of the room was a glass pane which was quite large;

(iv)  the charge payable by guests did not include any room charge.

Ground 2

2. In all the circumstances, as there have been material irregularities in the case, the conviction is unsafe and unsatisfactory.

12.I do not consider it necessary to set out Mr Lee’s written and oral submissions in full.  The crux of Mr Lee’s submissions is that whether the room in question was a “public place” depends on “whether the public were ‘entitled to have access’ or ‘permitted to have access’ to that place ‘for the time being’”.  This is a question of mixed law and fact and therefore precedent cases may not be wholly applicable.  However, the precedents show that the crucial factor is whether the general public could enterthat place at will without becoming “trespassers” as a result.  Mr Lee relies on the case of Harriot v. DPP[1]to support his argument.  According to Mr Lee, the Magistrate’s judgment shows that the Magistrate had not considered this crucial element at all before ruling that the room in question was a “public place”.

13.Mr Lee submits that the room in question was being used by the two undercover police officers at the material time, and members of the public were neither “entitled” nor expressly or impliedly “permitted” to enter that room.  Therefore, the nature of the room “for the time being” was, it is submitted, inconsistent with the definition of “public place”.

14.Mr Lee submits that “the public” or “a section of the public” do not include the waiters or waitresses who provide services.  Who are a “section of the public”?  Mr Lee gives two examples.  If certain premises accept only male guests, then male guests are the “section of the public”, and female guests are not entitled or permitted to enter the premises although they are also “the public”.  Another example is premises that accept only adults, which means that although minors are also “the public”, adults are the only “section of the public” who are entitled or permitted to enter the premises.  Mr Lee submits that if a “section of the public” include those who provide services at the premises, then almost all places will be “public places”.

15.Mr Lee adopts the analogy that I drew at the hearing between the room in question and the “VIP room” at a restaurant.  He also stresses that the facts in Mok Yu Ming were materially different from those in the present case.

16.To sum up, Mr Lee’s submission is that, as the evidence in the present case did not support the conclusion that the room in question was a “public place”, the Appellant’s conviction is unsafe.

17.Mr Lee further submits that the Magistrate had erred in considering the four matters set out under Ground of Appeal (2), in particular item (iv) – the charge payable did not include any room charge.  Mr Lee contends that the Magistrate’s judgment was self-contradictory: it stated on the one hand that the charge payable did not have an element of room charge, and on the other hand that the charge payable might already have included the costs of the room and beverage.

Respondent’s reply

18.Miss Fung, Acting Senior Public Prosecutor for the Respondent, refers to the cases of Mok Yu Ming and Wong Yiu Wah[2] and submits that the Magistrate’s findings were correct.  On the facts as found by the Magistrate, staff members could freely enter and leave Rooms 1 and 3.  Guests did not have the keys to the rooms and could not disallow staff members from entering and leaving the rooms, and  staff members did enter and leave the rooms from time to time in order to provide services.  Whether the rooms were being shared with other guests at the time of the offence was immaterial.  One of the police officers said that he would object if others requested to share the rooms with them, but there was no evidence to show that he was entitled to do so.  Through the glass panes on the doors, what happened inside the rooms could be seen.  This showed that those outside the room, including the person-in-charge of the nightclub, retained control over the rooms.  The charges payable by guests were not calculated on the basis of the use of the rooms.  Miss Fung also submits that the staff members of the nightclub were a “section of the public” entitled or permitted to have access to the rooms for the time being, and therefore the rooms were “public places”.

Discussion

19.The issue on the present appeal is of a very narrow compass: whether Room 1 in question was a “public place” at the time of the offence.  If the answer is in the negative, then the Appellant cannot be convicted even if she has offered sexual service to the undercover police officer (i.e. she has solicited for an immoral purpose).

20.It is beyond dispute that the definition of “public place” is to be found in the abovementioned section 117(1).  The present case involves a nightclub and rooms thereat.  Section 117(1)(a) is applicable, whereas section 117(1)(b) – which concerns a common part of any premises – is not engaged.

21.The relevant definition is: any place to which for the time being the public or a section of the public are entitled or permitted to have access, whether on payment or otherwise.

22.As Mr Lee points out, this is a question of mixed law and fact (see the judgment of the Court of Final Appeal in the case of Wong Yiu Wah[3]).  Judicial precedents are of limited assistance, particularly where the facts of those cases were not on all fours with those in the present case.  (For example, Wong Yiu Wah involved a “club” and Mok Yu Ming involved “massage rooms”.)

23.There can be no dispute that the nightclub in question was a “public place”.  The reception area and lobby of the nightclub were “public places”.  The question is: was Room 1 (or Room 3) a “public place”?  On the facts of the case, the nightclub and the rooms thereat were prima facie “public places”, but did the evidence before the Magistrate support this view?  Had the prosecution been able to prove that the room in question was a “public place”?

24.Where was the relevant evidence?

(1)    The two undercover police officers were not obstructed from entering the nightclub.

(2)    A staff member led them to a room, and there was no evidence to show that there was a number of tables/chairs inside the room for different guests to use.

(3)    When the staff member led them to the room, the undercover officers did not request a private room, but one of them expressly said that he did not expect any “table-sharing” and that he would not allow other guests to enter the room.

(4)    Staff members of the nightclub went in and out of the room from time to time.

(5)    The room in question had a window which was quite large in size and through which what happened inside the room could be clearly seen.

(6)    The nightclub charged its guests mainly for singing companion service rather than the room or beverage.

25.In my view, in the above circumstances, once the two undercover officers entered Room 1, that room was no longer a “public place” because for the time being “the public” or “a section of the public” was not entitled or permitted to have access to that room, which was for the private use of the two undercover officers (although they had not made such a request beforehand).  The use of that room is similar to the use of a “VIP room” or a room of a similar nature for a private gathering.  The guest who uses the room and the person-in-charge/staff members of the restaurant all acknowledge that, except that particular guest and his invitees, members of the public are not entitled to enter the room, and the person-in-charge/staff members of the restaurant will not permit members of the public to enter the room.

26.I do not agree with Miss Fung’s submission that the nightclub staff members were the “section of the public” entitled to have access to the room in question.  If her argument was accepted, the staff changing-room would also be a “public place”!

27.I do not agree with Mr. Lee’s submission that the Magistrate had erred in relation to the matters that he had taken into consideration.  The most important question is whether his conclusion was correct.  In the present case, it is true that the undercover officers were not given the room key, the bill did not mention any room charge, and what happened inside the room could be clearly seen through the window.  However, the ultimate issue for the Magistrate was whether Room 1 was a “public place”.

28.In the abovementioned example of a “VIP room”, if the room is used for a private gathering, it will be irrelevant whether the room is completely enclosed or allows people to look inside.

29.In the present case, had the undercover officers requested a private room or had the bill shown a charge for using Room 1, it would indeed have more strongly pointed to and supported the conclusion that the room was not a “public place”.  However, an absence of the above features would not necessarily mean that the room was a “public place”.

30.At trial, Mr Poon of Counsel who then represented the Appellant had drawn the Magistrate’s attention to the special features in the case of Mok Yu Ming: the licence of the massage establishment provided that no massage treatment could be conducted in seclusion, and there were two massage beds inside the massage room.  It was in light of the above two features that the court held that the massage room was a “public place”.  Mr Poon submitted that the circumstances in the present case were opposite to those in Mok Yu Ming because the room at the nightclub was designed in such a way that others were not allowed to use the room at the same time.  Emphasis was also placed on the undercover officer’s testimony that he would not allow others to enter the room.

31.In both the oral judgment and the Statement of Findings, the Magistrate stated that “the rooms inside the nightclub in question (no matter Room 1 or 3) are no different in nature from the massage rooms at a sauna”.  With respect, I find it difficult to understand this statement.  On the face of it, in a massage room there is body contact between the customer and the masseuse; on the other hand, nightclub staff members do not have to have body contact with guests with whom they drink, chat and play guessing games.  In comparison with Room 1 of the nightclub in the present case, there should prima facie be stronger reasons for arguing that a massage room is not a “public place”.  Mok Yu Ming is a unique case in that, on the evidence, the massage room was governed by the condition in the massage licence that no massage treatment was to be conducted in seclusion; and there were in fact two massage beds in the massage room, which showed that others were entitled to enter and use the room. 

32.In Mok Yu Ming, Tong J did make the comment that the Magistrate in the present case referred to in paragraph 13 of the Statement of Findings, namely that, having regard to the mischief which the relevant legislation was intended to cover, the term “public place” should not be construed restrictively.  However, as mentioned above, the Court of Final Appeal has pointed out that the court must consider both law and facts in deciding whether a particular place is a “public place”.

33.In my judgment, on the evidence in the present case and in light of all the circumstances, the prosecution had failed to prove that the room in question was at the material time a “public place”, and the Appellant’s conviction is unsafe and unsatisfactory.

34.I would also like to mention that I do not agree with Mr Lee’s submission that the Magistrate’s findings on item (iv), i.e. the charge payable did not include any “room charge”, were self-contradictory.  In saying that “the nightclub might have already included the costs of the place and beverage in the charge”, the Magistrate only meant that in general the charge payable had taken into account operating expenses.

35.For the above reasons, I allow the appeal and quash the Appellant’s conviction.

36.I make an order nisi on costs, which will become absolute if no application is made by either party within 21 days from the date of this order.

Order nisi

37.The Appellant is awarded costs of the present appeal, to be taxed, if not agreed, upon application under rule 5 of the Costs in Criminal Cases Rules enacted pursuant to the Costs in Criminal Cases Ordinance, Cap. 492 of the Laws of Hong Kong.

Miss Mickey Fung, Senior Public Prosecutor (Acting) of the Department of Justice, for the HKSAR.

Mr Kenneth Lee, instructed by T K Cheng & Co., for the Appellant.

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

[1] Harriot v. DPP (2005) EWHC 965

[2]  HKSAR v. Wong Yiu Wah, HCMA 508/2001

[3]  Wong Yiu Wah & Others v. HKSAR (2001) 4 HKCFAR 347, on p.349 “Whether a particular place, such as the club premises in the present case, falls within the ambit of a statutory definition of public place depends not only on the construction of the particular provision in question but also on the facts of that case.”