HKSAR v. WONG MING CHU

HCMA1127/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1127 OF 2004

(ON APPEAL FROM KCCC9813 OF 2004)

---------------------

---------------------

-------------------------

J U D G M E N T

-------------------------

1. After her trial at the Kowloon City Magistrates’ Court, the appellant was convicted of two charges of managing a vice establishment, contrary to section 139(1)(b) of the Crimes Ordinance, Cap.200 (“the Ordinance”).  Both offences involved the premises known as Buckingham Karaoke Night Club in Nathan Road, Yaumatei.

2. The appellant was fined $10,000 on each charge and was sentenced to three months’ imprisonment suspended for three years on each charge.  This is her appeal against the conviction on both charges. 

3. The prosecution’s case at the trial was that the police mounted two undercover operations respectively on 9 February and 4 March 2003.  On both occasions an undercover police officer who subsequently gave evidence as the prosecution witness at the trial posed as a customer and visited the premises in question which was located on the 4^th floor of a commercial building in Nathan Road.  It is apparent from the photographs exhibited at the trial that the Club advertised itself as a hostess karaoke nightclub.  The premises has an area of about 5,000 sq.ft. comprising 18 karaoke rooms of various sizes equipped with audio-visual equipment.  There was a bar area, a stage and a dance floor which could be used by customers who preferred not to use the private rooms or when those rooms were fully booked.  Other areas included lavatories, office and storage areas. 

4. According to the evidence of the undercover police officer whose evidence the magistrate accepted as truthful and reliable, what transpired on the two visits on the dates specified in the charges were very similar.  The witness was greeted by the appellant who introduced herself as the manageress of the nightclub.  He was first told to wait in the lounge area since the private rooms were full.  He was later led into a room and, on both occasions, the appellant introduced a hostess to the witness saying that the hostess could offer excellent sexual services including oral sex and sexual intercourse.  On both occasions, the witness rejected the first hostess introduced.  Very shortly afterwards, the appellant brought in another hostess, again claiming that she was able to offer excellent sexual services.  In the course of the introduction, the hostess would invariably position herself to have intimate contact with the witness and telling him that she could offer sexual services to him for the sum of $500 if he would take her out of the nightclub.

5. As part of his instructions, the witness would accept the offer and settle the charges for full escort service with marked money.  The officer would then be taken by the hostess to a hotel which was located in one of the lower floors in the same building.  The hostesses would demand that she be paid $500 for her services and again marked money would be handed over.  At the critical moment, the police officer would pretend that he was feeling unwell and the hostess would be paid the agreed sum of $500 and sent away.

6. At the trial, the appellant elected not to give evidence and no defence witness was called.  Mr Morley who also appeared in this appeal conceded that there was a case to answer on both charges.  There were two issues before the magistrate : the first was whether the premises were used wholly or mainly for or in connection with the organizing or arranging of prostitution and the second issue was whether the premises were kept as such as required by section 139(1)(b) of the Ordinance.

7. Both issues were resolved against the appellant and the magistrate found both charges proved beyond reasonable doubt and convicted the appellant thereon. 

8. Mr Morley advanced three grounds of appeal.  The first two grounds are directed at the magistrate’s approach on the evidence.  It is said that there was insufficient evidence to support the magistrate’s finding that the premises was used wholly or mainly as a vice establishment and that the premises were kept as such.  The third ground is a general ground contending that the convictions were unsafe and unsatisfactory.

9. There is no dispute on the identity of the appellant and the fact that she was, at the material time, involved in the management of the nightclub.  There was also no dispute that she had introduced a number of hostesses to the prosecution witness and used explicit descriptions about the sexual services which the hostesses were able to offer and as to what had transpired after the hostesses were taken out of the nightclub premises.

10. I think it would be convenient for me to deal with the second ground of appeal first. 

11. An essential element of the charge is that the premises were kept as a vice establishment.  Mr Morley submits that there was insufficient evidence before the magistrate to support her findings.  It is settled law that the word “kept” in the context of section 139(1)(b) of the Ordinance carries with it a sense of continuity.  (See Wong Chi Hung & Others v. The Queen [1982] HKLR 361.)  Mr Morley contends that the acts of offering sexual services to the police officer were isolated incidents which took place only on the dates specified in the charges.  There was no evidence at all to suggest such activities had been going on on any other days.  That being the case the requisite degree of continuity had not been proved.  I do not accept Mr Morley’s line of reasoning.  The undisputed evidence in respect of both charges is that when the first hostess was rejected by the police officer, the appellant returned with another hostess and made similar offers.  This repetition of conduct and the persistence on the appellant’s part, in my view, was sufficient evidence to satisfy the requirement of continuity.  The second ground of appeal has no merits.

12. I would now address the first ground of appeal.  Section 117(3) of the Ordinance defines a vice establishment as premises or any place :

“… [which] are or is used wholly or mainly by 2 or more persons for the purpose of prostitution; or … for or in connection with the organizing or arranging of prostitution.”  [Emphasis added]

There is little doubt that the procuration of the hostesses by the appellant was done “in connection with the organizing or arranging of prostitution”.  The vital question before the magistrate must be that whether the prosecution was able to prove beyond reasonable doubt the premises was used wholly or mainly for the purpose as particularised in this charge. 

13. In his submission in the court below which is repeated before this court, Mr Morley highlighted the undisputed fact that the nightclub premises was laid out, decorated, equipped and advertised as a hostess karaoke nightclub.  There is evidence from the prosecution witness that on the nights of the operations there were in fact customers using the karaoke and lounge facilities.  This is how the magistrate addressed this part of the evidence and came to the conclusion as she did :

“11.     I note that at least on 24 March, there were some customers seen by PW2 sing in the premises.  First the date was not relevant to the two dates in the charges, even if it were, or even PW1 had been singing there with the hostesses for a while, it cannot be indicative that the premises were not used wholly or mainly nor was it so kept for the purpose of prostitution.  The hostesses, who were ready to offer sex to any customers, were kept in the premises for purpose of prostitution.  I find that when PW1 attended the premises, the premises were already kept as a vice establishment with a degree of continuity, these hostesses could not be arranged just for PW1 there and then, but had been so arranged prior to his two visits.”  [Emphasis added]

14. The magistrate was dismissive about the fact that there were other customers singing in the premises and on the general layout and fitting of the premises.  With respect to the magistrate, it is readily apparent from the photographs and layout drawings exhibited at the trial that the premises in question is very different from a seedy operation conducted in a flat partitioned into small cubicles and holding itself out as an apartment house and where the cubicles consist only of a bed and washing facilities and where condoms, tissue papers and pornographic materials were seized. 

15. The premises in question has a bar which is stocked with drinks, fully equipped karaoke rooms of various sizes, an office area containing no less than six safes, numerous employees’ time cards, filing cabinets with documents and a computer.  I note there was no evidence before the magistrate as to the number of hostesses working in the club at the material time nor the number of mamasans working in the club.  The undisputed facts which I have just noted remains part of the prosecution’s case and evidence before the magistrate.  Even though the magistrate is entitled to express herself in rather convoluted way as she did, one must ask this question : “in the light of the evidence, has the prosecution proved beyond reasonable doubt that the premises was used wholly or mainly for or in connection with the organizing or arranging of prostitution?”  With respect the conclusion reached by the magistrate on this issue was not the only inference that can be drawn under the circumstances.

16. It would be impractical and indeed impossible for the court to device a precise mathematical formula to determine what constitutes wholly or mainly in the definition.  One must look at the evidence in each case in order to resolve this issue.  In adopting a dismissive attitude, the magistrate had fallen into error in not giving sufficient regard and proper weight to the evidence before her on the issue of whether the premises was wholly or mainly for the proscribed user.  The conviction of the appellant on the two charges are therefore rendered unsafe and unsatisfactory.

17. For the reasons given, the appeal against conviction on both charges are allowed.  The sentences are set aside and the fines, if paid, are to be returned to the appellant.