Leung Kwan-fu and Others v. The Queen
|
CACC001253/1976
----------------- Coram: Leonard, J. Date of Judgment: 6th April, 1977. ----------------- JUDGMENT ----------------- 1. Of the six appellants three appeal against their convictions on a charge of keeping a disorderly house contrary to Common Law between 25th of May 1976 and the 29th of May 1976 in a place known as the Hong Kong Artists' Club situated at the basement of Champagne Court, Kimberley Road, Kowloon and the other three against convictions of aiding and abetting that keeping. I pause to remark that since section 89 of the Criminal Procedure Ordinance, Cap. 221 provides
it was unnecessary to charge the fourth, fifth and sixth appellants with aiding and abetting. All alike might have been charged with keeping. However, doubtless it is of assistance administratively to distinguish the functions of participants as such a distinction would be helpful to a busy magistrate considering sentence on a plea of guilty. 2. On the 29th of October 1974 the first appellant as chairman and two others who are not before the court as secretary and treasurer respectively applied for registration in accordance with the provisions in section 5 of the Societies Ordinance of the "society" known as the "Hong Kong Artists' Club" which then had an address in Austin Road. The objects of the "society" were stated to be:
The persons eligible for "membership" were stated to be "anyone who is interested in arts and over 18 of age" (sic). A list of promoters of this "club" was provided to the Registrar on the 17th of October 1974. The first appellant was named as "chairman" and the fourth appellant as "commissioner". The society was registered and a certificate of registration was issued on the 7th of January 1975 which gives the address of the association as No. 12, Kimberley Road, Basement, Kowloon, the address mentioned in the charge. This certificate was in due course framed and placed on the wall of the office at that address. 3. Some time prior to the 25th of May 1976 the attention of the police was drawn to the "club" probably as a result of a large advertisement placed above the stairway to the basement. This advertisement promised "best shows in Hong Kong" and "cheapest charges club" and that certain "fantastic shows" would be given every evening. "Each show to consist of two programmes." Again it promised that there would be "40% off for those coming after 12 o' clock" and that "enthusiastic service" would be offered by "several tens of pretty singer-hostesses." Business hours were stated to be from 7.30 p.m. until 4.00 a.m. It is not expressly stated in the record that it was this advertisement sign which drew the attention of the police to what is going on in the basement, but the advertisement was clearly calculated to attract the attention of the curious. 4. On the 25th of May 1976 a senior inspector of police chaperoned on by a detective constable visited the basement. At the door he was asked whether he was a member and when he said he was not he was told to go to a reception counter where he was given an application form to complete and told to put down his name and address on it. He put down his correct name and a false address. There was no check. He was given a membership card and asked for $10 which he paid. He signed the membership card and they were led in. The card bore the initials of the "club" and the notation "entitled to association membership facilities subject to conditions on reverse (sic) side". The "conditions" were that the card was not transferable and that it must be presented when requested. It also gave directions as to what should be done if it was lost. When the senior inspector and the constable got inside they were brought to seats, and the inspector refused beer but was offered brandy which he accepted. The constable got orange juice. There were a crowd of about 150 people there, mostly Japanese tourists, a floor show area and a band-stand complete with band. There wore ten uniformed waiters and the second and third appellants acting as bead waiters or managers. The sixth appellant was acting as compere and he introduced a show which went far beyond the bounds of what is considered decent even in these permissive days. Indeed it was salacious in the extreme. 5. On the 26th of May 1976 two more inspectors visited the premises. They had experiences similar to those who visited on the 25th. One of them was issued with the same type of membership card after inserting a false name in the application. No check was made on their identities and they saw an equally indecent show. These officers returned to the premises again the following night and again on the 28th of May 1976 and finally on the 29th of May 1976 a raid was staged while an indecent performance was being given. 6. One must have considerable sympathy with these unfortunate police officers who were given the distasteful duty of sitting drinking brandy or vodka watching and even applauding (for the purposes of deception) acts which they must have found utterly revolting. Be that as it may the evidence adduced was quite clear. Indecent shows were nightly being staged in the "club" and the first question on which the learned magistrate had to be satisfied was that these resulted in the premises being a disorderly house. The organisation posed as a private club but notwithstanding what was said in CHAN Man & Others v. The Queen(1) the learned magistrate was quite satisfied that this was not a true club but a place to all intents and purposes open to all comers. I think this view was clearly right. It was a sham club and any member of the public who was prepared to pay could go in. "Membership" was a mere fiction. The learned magistrate was satisfied as I am that the test approved in Reg. v. Quinn & Bloom(2) was satisfied. The following passage from that case at page 255 bears repetition:
The realities of the situation persuade me not only that this place was a sham club but also that what occurred in it was contra bonos mores. Is it then to be concluded that it was a disorderly house and the appellants guilty of keeping it or aiding or abetting its keeping? It is in connection with these matters that Mr. Sedgwick has advanced an able and audacious argument. He pointed out that the Disorderly Houses Act 1751 had no application here as it is not mentioned in the Schedule to the Application of British Laws Ordinance. We are entirely dependent on Common Law. Section 8 of the Disorderly Houses Act which raises presumptions as to the identity of the keeper of a disorderly house indicates the necessity for these reciting that:
If, argues Mr. Sedgwick in effect, the common law in England before 1751 was so narrow as to call for the presumptions the courts must indeed have been slow to convict, that is slow to be satisfied by inference that the Crown had discharged the onus on it of proving beyond reasonable doubt that a person charged with keeping was the keeper or the owner. He also sought comfort from the accepted form of indictment to be found in Vol. 1 of Burn's Justice of the Peace at page 1400. This was apparently the form of indictment in use in the 18th century. He argued that it was, as was shown by the terms of that indictment, for the Crown to prove that the person charged kept the house "for his own lucre and gain" and "caused and procured evil and ill-disposed persons of evil name and fame to come together to the great damage and common nuisance of all subjects of our said Lady The Queen and against the peace of our said Lady The Queen her Crown and dignity." He suggested that the development of the Common Law which has taken place in England has not taken place here because that development resulted in part from the enactment of the Disorderly Houses Act. This was tantamount to saying the law here today relating to disorderly houses has not grown since the 18th century and that before the passage of the 1751 Act the keeping of a disorderly house was not easily to be proved by inference and should not be now. The learned magistrate, he suggested, had relied too much on inference and too little on proven fact. The argument was, if I may say so with all respect to Mr. Sedgwick, an appealing one, but on the facts on this case I must dub it "a subtle and crafty contrivance". Admittedly the court here cannot be assisted by any of the presumptions supplied by the Act of 1751 but nowhere are they enjoined to discard commonsense. That commonsense must be applied to facts as they exist in the 20th century and not the 18th. The words of Parke, B. as quoted by Avory, J. in Berg's Case(3) are apposite
7. The first appellant here was proved to have applied for registration of the club as its chairman. While the learned magistrate is wrong to have called him a "licence holder" his position was analogus to one for he had custody of the framed certificate of registration of "the society known as the Hong Kong Artists' Club". Furthermore he was found in the office of the premises at the time of the police raid which was close to midnight. I find the inference that he was a keeper irresistible. The second appellant claimed at the time of the raid to be in charge of the "club". Various police officers on various nights had seen him acting in a managerial capacity. The third appellant had also been seen acting as a floor captain on several nights prior to the raid and admitted in his cautioned statement that he was in charge. As to these appellants Mr. Sedgwick argued forcibly that they could not be keepers that they were mere employees and referred to the user of the expression "their own lucre and gain" in the old form of indictment as support for his argument that there must be an element of proprietorship in a keeper. I consider having regard to section 89 of the Criminal Procedure Ordinance that once the character of a house is established to be such that it is the disorderly house any one who participates in its active management must be regarded as its keeper. Even if Le is paid only a salary he is paid that salary for the work which he does and the therefore works "for his lucre and gain". At best the second and third appellants were aiders and abetters in the keeping of the disorderly house and section 89 renders them liable as keepers. The evidence against the fourth appellant is rather thin. His name appeared on the list of the promoters of the Hong Kong Artists' Club and he was present on the night in question. The learned magistrate in convicting him referred to him as "a committee member" and "one who assists in the running of the establishment". Unfortunately it does not appear from the statement of findings in what manner the learned magistrate found this appellant to have assisted. There was evidence to suggest that a warning signal from this appellant at the time of the police raid resulted in the show being stopped. The learned magistrate does not expressly find or infer that his action indicated aiding and abetting the keeping of the house. I reluctantly allow the appeal of the fourth appellant. The cases against the fifth and sixth appellants were straightforward. The fifth appellant acted as compere and the sixth was one of the loose-limbed ladies who figured in the exhibitions which gave the house its character. The appeal of the first, second, third, fifth and sixth appellants are dismissed. 8. I would finally remark that police officers spent considerable time and (presumably public) money on the investigation and presentation of this case. Fines of $2,000, $4,000, $3,000 were imposed on the three persons charged as principals and fines of $500, $500 and $200 on the three charged as aiders and abetters. I have allowed the appeal of one of the latter. No one has suggested these penalties were inadequate or that the character of Tsim Sha Tsui was remarkably changed by this operation. Japanese tourists will presumably continue to be fleeced elsewhere and one doubts if they really want protection against this sort of thing. I wonder if the whole operation was really worthwhile? In saying this I do not mean to suggest that the proliferation of such shows could be tolerated. Perhaps greater vigilance on the part of the Registrar of Societies would prevent it.
Representation: Mr. Sedgwick (T.Y. Lee & Co.) for all appellants. Mr. Conway, C.C. for the Crown/respondent. (1) (1976) H.K.L.R. 284. (2) (1962) 2 Q.B. 245. (3) 20 Crim. App. Reports 38 at 41. |