Chan Man-shing and Others v. The Queen
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CACC000686/1980 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL No. 686 OF 1980 -----------------
----------------- Coram: Hon. Silke, J., in Court Date of Judgment: 11th September 1980 ----------------- JUDGMENT ----------------- 1. There are five appellants in this appeal and Mr. Peter Nguyen appears for all. 2. The first appellant Mr. Chan Man Shing was charged with the keeping of a disorderly house "between the 20th day of May 1980 and 21st day of May 1980": the other four appellants, the participants in the entertainment provided, were charged with aiding and abetting in keeping a disorderly house. All the offences were charged as being contrary to common law and all were tried together at Causeway Bay Magistracy. 3. Leave was granted to the appellants at the hearing of the Appeal to argue two grounds additional to the general ground set out in the Notice of Appeal. These two grounds were 1 "....... there was no evidence whatsoever that there had been an element of persistent user": 2 "........ the evidence adduced did not justify the learned Magistrate (sic) finding that there was an element of 'open house'." 4. For reasons which will become apparent I am concerned only with the first ground. 5. The evidence led in the Magistrates Court was to the effect that members of the Royal Hong Kong Police Force went, on the 20th May 1980 to the Po Shing Association in Marsh Road. There they had to suffer through a series of performances which included the athletic use of live gold fish, coins, cocacola and a paint brush by a young lady as adjuncts to her act together with three other acts which can only be described as salacious. 6. On the evidence before him it appears to me that the learned trial Magistrate was entitled to come to the conclusion he did that there was an element of "open house" in respect of the premises though I have not been addressed on this aspect of the appeal. 7. He was however never addressed upon the issue of persistent user and made no reference to it in his Statement of Findings. 8. In Brady and Ram 47. Crm. App. Reports 196 wherein Lord Parker C.J., having made reference to Marks v. Benjamin (1839), 5 M. & W. 565 and Davies [1897] 2 Q.B. 199 as to "keeping" involving some element of persistent user, had this to say:
The case concerned the keeping of a disorderly house. 9. In A.G. v. Chan Man Kong [1967] H.K.L.R. 225 McMullin, J. (as he then was), having made reference to R. v. Porter [1949] 1 All. ER. 646, Belton v. Busby [1899] 2 Q.B. 384 and Young and Darrah (1929) Sessions Cases (J. 17), had this to say at p. 239:
10. Leonard J. (as he then was) in Wong Choi Fung v. The Queen: Crim. App. 61/77 (unreported) set out the old form of indictment for keeping a disorderly house which form includes the phrase "on the __________ day of _________ in the year of our Lord _________, and at divers other times, as well before as after ........" (my emphasis) and had this to say of it:
11. The Common Law remains the same. Mr. Martin for the Crown, very properly, conceded that this is so. Some element of regular, persistent or habitual user must be shown when the charge is "keeping", be it a disorderly house or a gaming house. 12. He further concedes, again very properly, that there was no evidence before the learned Magistrate of such user. The 21st May date in the charge is illusory in that it merely indicates the change of date at midnight. 13. In the event I allowed the appeal and quashed the convictions of the five appellants and also their sentences. The fines if paid, to be returned to them.
Representation: Mr. Nguyen (Sousae & Hoosen) for Appellants Mr. Martin for Crown/Respondent |