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[English Translation― 英譯本]
HCMA 121/2015
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
APPEAL AGAINST CONVICTION
MAGISTRACY APPEAL NO. 121 OF 2015
(ON APPEAL FROM KTCC 4877 of 2014)
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HKSAR |
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and |
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LI JING |
1st Appellant |
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WONG HING PUI |
2nd Appellant |
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| Before: Hon D. Pang, J., in Court |
| Date of Hearing: 7 July 2015 |
| Date of Judgment: 7 July 2015 |
JUDGMENT
1. The two appellants (A1 and A2) were the first and the second defendants during trial. They were each convicted on one charge of offence after trial and sentenced as follows:
A1- Charge (1) Managing a vice establishment, contrary to section 139(1)(b) of the Crimes Ordinance, Cap 200, Laws of Hong Kong. Sentenced to 12 months of immediate imprisonment.
A2- Charge (2) Breaching condition imposed under Dutiable Commodities Ordinance, contrary to sections 46(1) and 46(3) of the Dutiable Commodities Ordinance, Cap 109, Laws of Hong Kong. Sentenced to one month’s imprisonment suspended for one year.
Aggrieved by the convictions, they appealed against the convictions at the same time (A1 had earlier on abandoned his appeal against sentence).
Charges
2. The first charge states that A1, at 1st Floor, Yau Shing Mansion, Tung Choi Street, “managed the said premises which were kept as a vice establishment”. The date of offence was 14 April 2014.
3. The second charge states that A2, at 1st Floor, Yau Shing Mansion, Tung Choi Street, “contravened a condition lawfully imposed under section 7(1)(b)(i) of the Dutiable Commodities Ordinance, namely, premises not to be used for immoral purposes.”[1] The date of offence was 14 April 2014.
Prosecution case
4. All five witnesses the prosecution called were police officers. Those directly related to the appeal were PW1, PW2 and PW5. The first two had taken part in what is colloquially known as “sting” operations. The last one was the exhibit officer. PW5 had searched the premises in question, (including but not limited to its rear staircase), and found a large quantity of exhibits.
5. The trial was before Mr Wong Ching Yu, Edward, Deputy Magistrate. He said as follows in the statement of findings (“the Statement”):
“5. Prosecution case was that on 7,9,14 July 2014 at Kam Wong Kok (transliteration) Karaoke Night Club (“Kam Wong Kok”), the location particularized in the statement of offence, PW1 and PW2 posed as customers to patronize the establishment. During that time, the 1st defendant indicated that she could arrange sexual service for them. In the end, on 14 April, 2 public relations girls, Chow Wai (transliteration) (“Chow”) and Law Hoi Mui (transliteration) (“Law”), were going to give them sexual service. PW5 seized exhibits relating to prostitution at Kam Wong Kok.”
Defence case
6. A1 did not testify, nor did she call any witness. Her version of the events was summarized by the magistrate as follows:
“6. The 1st defendant did not dispute that she, Chow and Law did attend to PW1 and PW2 but disputed:
(a) That she did indicate that arrangement could be made to provide sexual service to the two witnesses;
(b) That Chow and Law were going to provide sexual service to the two witnesses on 14 April;
(c) That the items PW5 seized from the litter bin at the rear staircase of Kam Wong Kok belonged to Kam Wong Kok; and
(d) That Kam Wong Kok was a vice establishment.
7. A2 did testify but called no witness. The magistrate said:
“7. The 2nd defendant did not dispute that he was the licence holder of Kam Wong Kok, but disputed:
(a) That Kam Wong Kok was used for immoral purpose on 14 April; and
(b) That he failed to take all reasonable steps to ensure that Kam Wong Kok would not be used for immoral purpose. [2]”
8. The detailed evidence A2 gave is as follows:
“(1) Examination-in-chief
49. D2 commenced working as an officer at Kam Wong Kok in May 2010. He became the licensee of Kam Wong Kok in March 2013. In August 2013, the 2nd defendant hired the 1st defendant as an officer. The working hours of the 2nd defendant were from 2100 to 0600 with Sundays off. At the time in question on 14 April, the 2nd defendant was not present at the scene. No criminal prosecution had ever been made against Kam Wong Kok.
50. Defence exhibit D1, a photo, shows the following situations:
(1): 4 notices, including the above “declaration”, were posted at the entrance to the lift.
(5): There was a “declaration” posted at each of the rooms. The declaration was posted up since the 2nd defendant had begun working at Kam Wong Kok.
(8): The part of the rear staircase leading from the second floor to the first floor.
(10): The Golden Palace Karaoke Nigh Club on the second floor- bore no relationship with Kam Wong Kok.
51. The staff of Kam Wong Kok worked on two shifts: day shift (from 1100 to 2100) and night shift (from 2100 to 0600). The staff members on day shift included one manageress, 7 female officers, 20 public relations girls, one cleaning lady and one female cashier. Those on night shift included the 2nd defendant, one male manager, 4 female officers, 20 public relations girls, one cleaning lady and one female cashier.
52. Chow was hired by the 2nd defendant. The latter gave her a “work declaration of public relations girl” (defence exhibit D3(2)) and read out the content to her. She indicated that she understood it and signed on it. That relating to Law is defence exhibit D3 (1). It was written in defence exhibit D3 that “This Company strictly forbids you from having any immoral transaction or behaviour with customer of the company. Should there be any breach of the rule, you will be immediately dismissed without getting any compensation whatsoever.”
53. Before the public relations girls signed on the staff cards, the 2nd defendant also told them that Kam Wong Kok did not allow any immoral behaviour. It was only after they had indicated that they understood it would they sign on it.
54. The 2nd defendant also asked the public relations girls not to have any immoral behaviour or excessive physical contact, and they were not allowed to keep any condoms in the lockers. The 2nd defendant conducted spot check on the lockers twice a month to see if any forbidden items, such as condoms, were kept inside. No condom had been found in the past checks.
55. The 2nd defendant had instructed the day shift manageress to supervise the staff and the operation of Kam Wong Kok. During day shift, the 2nd defendant had on average telephoned the manageress twice daily, with each call lasting for 5 minutes, to ask the manageress if she had instructed the officer/s to inspect the rooms and if anything special had happened.
56. Inspection of the rooms was mainly done by the 2nd defendant during night shift. It was done once every 15 to 20 minutes. Each room had a triangular window on its door through which people could see all that was going on inside the room. The 2nd defendant would observe what was going on inside the room for two minutes through the window on the door. He had never seen any immoral behaviour taking place, but he had seen public relations girl and customer kissing each other. He went into the room immediately to stop them, and asked them not to get too passionate and go too far. They would usually promise not to kiss again. The 2nd defendant had also seen customer touch the breasts and private parts of the public relations girls. He would likewise go into the room to stop them and asked them not to do it again. Never had any customer or public relations girl ignored the 2nd defendant.
57. The 2nd defendant indicated that customers could ask to check the bills (for example, P20). Kam Wong Kok also gave the bill to customers. The bill set out the charges for items such as snack, drink, time public relations girls had spent sitting with customer and the 18% service charge. Of these items, the charge for the time public relations girls spent sitting with customers was $284 per hour during day shift and $360 per hour during night shift.
(1) Cross-examination
58. When girls came to interview for the public relations job, Kam Wong Kok did tell them that they were not allowed to engage in immoral behaviour, and if customer pressed ahead with it, they were to inform the staff members.
59. The 2nd defendant did instruct staff members that when they ushered the customers into the rooms, they were required to tell them the content of defence exhibit D1, the “declaration”, and the consequences of engaging in immoral behaviour.
60. The 2nd defendant said when he asked the manageress if she had sent officer/s to inspect the rooms, he also asked her if any immoral behaviour had taken place. He had also instructed the manager and the cleaner to pay attention to see if there was any immoral behaviour going on. If there was, the staff member would inform the manager who would immediately call the 2nd defendant. The 2nd defendant had also instructed them to stop the customer, ask the customer to leave, and warn the public relations girl not to engage in those acts. The 2nd defendant would stop the customers from touching the thighs of the public relations girls.
61. The 2nd defendant would meet with the public relations girls every ten days to remind them of the rules and regulations of Kam Wong Kok, including the ban on having excessive physical contact or immoral behaviours, such as paid sex or sexual contact, with customers. If the public relations girls did not observe the rules of Kam Wong Kok, the 2nd defendant would stop them from receiving customers and ask them to leave.
62. The 2nd defendant had also asked the public relations girls not to bring condoms to work. He would also conduct two non-spot checks each month on the locker of one to two public relations girls.
63. As regards the condoms[3] in the metal bucket shown in P5(44) to (46), the 2nd defendant was not clear why they were there. He explained that he would not inspect that location and it was dealt with by the cleaner/s. He had asked the cleaner/s to pay attention to the vicinity to see if there were any forbidden items such as condoms. He did ask the cleaner/s if she/they had found any 3 days before the material day and she/they told him none had been found. Neither had she/they told him that there were condoms inside the metal bucket. But he agreed that he could have inspected that metal bucket himself without having to rely on the cleaner/s, and to do that himself would be more effective in ensuring that no immoral acts would take place.”
Findings of the magistrate
Were the prosecution witnesses credible?
9. There were discrepancies in the evidence given by both PW1 and PW2 (whether when each is to stand alone or when compared with that given by one against the other). However, after careful analysis[4] , the magistrate found that at least in respect of the two “sting” operations carried out on 9 April and 14 April, the core evidence given by these two witnesses was accurate and credible. First, PW1:
“86. According to the evidence of PW1 that I have accepted:
(a) On 9 April 2014, the 1st defendant ushered PW1 and PW2 to a karaoke room and told them that she would arrange public relations girls for them. Later, she brought two public relations girls to the room to entertain the two witnesses. Afterwards, she came into the room to ask table(sic) and if PW1 needed special service from the public relations girls. The two witnesses asked her for details and information about the special service. She said, “Going inside a room with the girls to do it. Apart from the bill for drinks, pay the company one and a half hours of room charge, and $300 in addition to each of the public relations girls.” During the time when the two witnesses were in Kam Wong Kok, they had requested for a change of public relations girls and the 1st defendant did make the change.
(b) On 14 April 2014, the 1st defendant ushered PW1 and PW2 to room 21, and told them that she would arrange public relation girl for them. Later, she brought Chow and Law to the room of the two witnesses. Afterwards, she went into the room to ask table(sic) and if the two witnesses needed the public relations girls to provide special service to them. They asked her for details of the special service. She answered, “Apart from the bill for drinks, pay Kam Wong Kok one and a half hours of room charge, and $300 in addition to each of the public relations girls.” PW1 indicated that he agreed and the 1st defendant then said she would make the arrangement for PW1.
(c) Then Chow took PW1 to room 16. There were 5 cups of tea on the table in the room. PW1 asked Chow why there were so many cups of tea. Chow answered, “[They] are for washing your member.” She then took out 5 packets of wet paper towels (P9), one condom in blue wrapper (P6) and one pastel blue brassiere (P7) from the pocket of her upper garment. PW1 asked Chow what the wet paper towels were for and why there were as many as 5 packets of them, Chow answered, “Need to wipe your member after washing it”. She then took off her outer garment, and when she was going to take off her black upper garment, PW1 stopped her and revealed his police identity. Then the 1st defendant rushed into room 16 and said, “There is/are cop/cops, hold doing it.” She then left.
(d) When PW5 entered room 16, Chow discarded the condom by throwing it over the back of the sofa to land on the space between it and the wall. A pair of pink panties (P8) was found in the outer garment of Chow upon search.
(e) P5(15) to (20) showed the above exhibits.”
10. Second, PW2:
“87. According to the evidence given by PW2 that I have accepted:
(a) On 9 April, the 1st defendant brought PW 1 and PW2 to room 6 and said she would introduce two public relations girls to them. At 2030 hours, the 1st defendant brought two public relations girls to the two witnesses to drink and sing with them. After that, the 1st defendant asked the two witnesses a number of times if it was necessary to change the public relations girls. They both indicated that it was necessary, and the 1st defendant made the change for them. At 2140, the 1st defendant said, “pay one and a half hours more of room charge and $300 to the girl”. The 1st defendant had also mentioned “open one more room, pay one and a half hours more of room charge” and “special service”.
(b) On 14 April, the 1st defendant brought them into room 21, and said she would introduce two public relations girls to them. At 1835 hours, the 1st defendant brought Chow and Law to the room to drink and sing with the two witnesses. At 1855 hours, the 1st defendant went to room 21 again to ask the two witnesses if they needed the two public relations girls to provide special service to them. PW1 indicated agreement. The 1st defendant said, “Pay one and a half hours of room charge more and $300 to the girl”. She then left.
(c) At 1923 hours, Law came back having been away for a while. She had put on an outer garment in the meantime. She was holding a black brassiere (P11) and a plastic tray in her hand. On the tray there were 4 cups of water and 5 packets of wet paper towels (P13). Law put the plastic tray on the table and put a condom in blue wrapper (P10) on the tray and the brassiere on the sofa. Then she took off her outer garment and when she was going to take off her dress, PW2 stopped her at once and revealed his police identity. At 1933 hours, an unknown female entered room 21 and said “There is/are cop/cops, hold doing it”. She then left. At 1940 hours, PW5 entered room 21 for a search. At this point, Law at once hid the condom in a crack of the sofa. A pair of black panties (P12) was also found in the Law’s outer garment.
(d) P5 (22) to (28) showed the above exhibits.”
11. As regards PW5, the magistrate said:
“80. In respect of the evidence PW5 gave, the main dispute is whether the items he seized from the litter bin shown in P5 (61) were related to Kam Wong Kok. He indicated that (61) and (42) showed the same place. But under cross-examination, he agreed that the situations they showed were actually different. Besides, the rear staircase where the litter bin was could lead to another night club which was not related to Kam Wong Kok. Therefore, I cannot be sure if the litter bin and the items inside it belonged to Kam Wong Kok. As a result, I will not consider P5 (61) to (80) and the exhibits seized from the litter bin (P27 to 30).[5]
Was Kam Wong Kok being managed to be used as a vice establishment?
12. The magistrate found that the answer to this question is “yes”:
“82. Section 117(3) of the Crimes Ordinance defines vice establishment as a place which is used wholly or mainly by 2 or more persons for the purposes of prostitution or wholly or mainly for or in connection with the organizing or arranging of prostitution.
83. According to paragraphs 21-238 of Archbold Hong Kong 2015, the court needs to consider the period of time when the establishment was managed for the purpose of prostitution. But if the circumstantial evidence indicates that the establishment was already used for the purpose of prostitution before the police crackdown or that it was to a certain extent used for that purpose continuously, then even an isolated incident may constitute sufficient evidence.
… …
88. The defence submitted that Chow and Law had never mentioned sexual service or had any physical contact with the two witnesses. Be that as it may, considering the words and deeds of Chow and Law on 14 April, there is no doubt at all that they were going to provide sexual service to the two witnesses. Therefore, I am sure that Kam Wong Kok was used for the purpose of prostitution on 14 April.
89. These words and deeds of the two public relations girls were all uttered and performed after the 1st defendant had mentioned “special service” to the two witnesses and asked them to pay one and a half hours more of room charge and $300 to the public relations girls. Therefore, there must be a connection between these words uttered by the 1st defendant and the sexual service. On 9 April, the 1st defendant also said similar words. Therefore, the irresistible inference is that what the 1st defendant said on 9 April carried the same meaning. In the result, I am sure that Kam Wong Kok was also used for the purpose of providing sexual service on 9 April. In other words, from 9 April to 14 April, Kam Wong Kok was used continuously for the purpose of prostitution.
90. The defence submitted that there were 17 rooms in total in Kam Wong Kok. Among them, only two were said to have immoral behaviour taken place. Therefore, this case only involved an isolated incident. I do not agree:
(a) The 9th April was only the second time PW1 and PW2 patronized Kam Wong Kok, but the 1st defendant already asked them if they needed special service. And I have already found that “special service” was in fact sexual service. It can be seen from this that Kam Wong Kok would also provide sexual services to even newer customers.
(b) As mentioned above, the 1st defendant asked PW1 and PW2 on both 9 and 14 April if they needed special service, and both Chow and Law were going to provide sexual service to the two witnesses on 14 April. Therefore, Kam Wong Kok was used for the purpose of prostitution on both of those two days.
(c) There were 284 and 50 unused condoms respectively of the brand Durex and Okomato (P26) in the metal bucket in the corridor of Kam Wong Kok. It is obvious that such a large quantity of condoms cannot all be used in one isolated incident.
91. The above evidence shows that on 14 April, Kam Wong Kok was used mainly by 2 or more persons for the purposes of prostitution or in connection with the organizing or arranging of prostitution.
92. Therefore, I find that Kam Wong Kok was a premises managed to be used for the purpose of prostitution on the material day.
Was A1 managing a vice establishment?
13. The magistrate found that the answer to this question was also “yes”:
“93. According to paragraphs 21-240 of Archbold Hong Kong 2015, the Prosecution must prove that the 1st defendant:
(a) Did control the operation of Kam Wong Kok; and
(b) Did know that Kam Wong Kok was a vice establishment.
94. On both 9 and 14 April, the 1st defendant did usher PW1 and PW2 into the rooms and arranged public relations girls for them. She asked table (sic), changed the public relations girls, enquired if the two witnesses needed special service and explained the details of the service. Therefore, there is no doubt that the 1st defendant did control the operation of Kam Wong Kok.
95. On 14 April, the 1st defendant asked PW1 if he needed special service. He indicated agreement. Then the 1st defendant indicated that she would make the arrangement. Then Chow and Law were prepared to provide sexual service to PW1 and PW2. It can be seen from this that the sexual service that these two public relations girls were going to provide was arranged by the 1st defendant. Therefore, she must have known that the two public relations girls were going to provide sexual service. On 9 April, the 1st defendant also asked the two witnesses similar question. Therefore, the 1st defendant must have known that Kam Wong Kok was a vice establishment.
96. Therefore, I am sure that the 1st defendant did manage or assist to manage or otherwise was in charge of or in control of Kam Wong Kok.
97. In the result, the prosecution has proved the first charge beyond any reasonable doubt.”
Did A2 breach the condition of the liquor licence?
14. The magistrate found that the answer to this question is also “yes”:
“98. In respect of charge 2, the parties agreed that it should be proved according to the principles laid down in Kao Chun ManHCMA 958/2007:
(a) That Kam Wong Kok was used for immoral purpose;
(b) That the 2nd defendant failed to take all reasonable steps to prevent Kam Wong Kok from being used for immoral purpose; and
(c) That the failure of the 2nd defendant to take all reasonable steps bears a causal link with Kam Wong Kok being used for immoral purpose.
99. In respect of the first point, I have already found that on 14 April, Chow and Law were going to provide sexual service to PW1 and PW2. Therefore, I am sure that on the day in question, Kam Wong Kok was used for immoral purpose.
100. In respect of the second point, having considered all the testimonies and evidence regarding the steps the 2nd defendant had taken, I find that he had not taken all reasonable steps for the following reasons.
101. First, P5 (44) to (46) showed that there were over 300 unused condoms in a metal bucket of Kam Wong Kok. The 2nd defendant was not clear why they were there. He explained that he would not inspect that location which was dealt with by the cleaners. But he agreed that he could have inspected that metal bucket without having to rely on the cleaners, and if he had done so, it would have been more effective to ensure that no immoral behaviour would take place.
102. Besides, in this case, Kam Wong Kok was used for immoral purpose during day time. The defence argued that the liquor licence only required the 2nd defendant to be present in the premises from 2100 to 0500 hours, and he was not required to be there at the time the case happened. Be that as it may, since Kam Wong Kok had chosen to open for business during hours other than those above, then the 2nd defendant still had to take other reasonable steps to prevent Kam Wong Kok from being used for immoral purpose. The defence agreed that during the day, the only step that the 2nd defendant had taken was to telephone the manageress twice, with each call lasted for 5 minutes, to ask if the officer/s had been instructed to inspect the rooms and if any immoral behaviour had taken place.
103. The defence agreed that after the 2nd defendant had gone off work at 0600 hours, deducting the time he spent on traffic, sleep and other daily activities, he still had 7 hours before he had to get back to work again. In other words, he only telephoned the manageress once every 3.5 hours. The defence agreed that even if the 2nd defendant telephoned her more than twice, it would not be regarded as excessively frequent.
104. I consider it insufficient for the 2nd defendant to call the manageress only once every 3.5 hours to enquire. He could absolutely have made more frequent enquiries, and if he had done so, he could definitely have been better able to prevent Kam Wong Kok from being used for immoral purpose.
105. In respect of the third point, if the 2nd defendant had personally inspected the metal bucket in question, he would have found those unused condoms and removed them. This would certainly have been helpful to prevent Kam Wong Kok from being used for immoral purpose in this case. Besides, had the 2nd defendant made more frequent telephone calls to the manageress during the day to enquire, this would have better ensured the officer/s to conduct sufficient inspections on the rooms. This would no doubt have helped to prevent Kam Wong Kok from being used for immoral purpose in this case. Therefore, I am sure that there was a causal link between the 2nd defendant’s failure to take all reasonable steps and the immoral use that Kam Wong Kok was put to.
106. Therefore, the prosecution had proved charge 2 beyond any reasonable doubt.”
This appeal
Ground of appeal(1)
15. The appellants complained that the magistrate erred in his handling of an important element of the offence. The said element requires that the premises in question be “used wholly or mainly in connection with (the organizing or arranging of) prostitution”. The operative words are “wholly or mainly”. (This ground of appeal is applicable to both appellants).
Particulars
16. The appellants’ submissions:
(1) According to the interpretation of section 117(3) of the Crimes Ordinance, unless the premises in question are used “wholly or mainly” for the purpose of prostitution or for organizing or arranging of prostitution, or “wholly or mainly” in connection with the organizing or arranging of prostitution, otherwise they will not be deemed to be a “vice establishment”.
(2) This is a question that the magistrate had to deal with. However, there is only one single sentence in the whole of his statement of findings that is relevant to this question. Not only that, he gave no reason why he made this finding (see paragraph 12 above (paragraph 91 of the Statement)).
(3) Further, the evidence in the case is not sufficient to prove that the premises were “wholly or mainly” used for the purpose of prostitution or for organizing or arranging of prostitution, or “wholly or mainly” in connection with the organizing or arranging of prostitution for the reasons that:
(a) According to the testimony of A2, there were twenty public relations girls on duty be it during day shift or night shift. And according to the testimonies of PW1 and PW2, there were indeed lawful activities such as drinking and singing etc provided by Kam Wong Kok.
(b) The agreed facts show that at the time in question, apart from room 16 and room 21 where Chow and Law were, there were eleven other karaoke rooms in Kam Wong Kok being occupied by thirteen customers and ten public relations girls. Besides, there were six public relations girls in the staff room. It was not found that there was paid sex going on among these customers and public relations girls.
(c) There are no register, accounts books or even special layout inside the premises at all that is sufficient to show that Kam Wong Kok had any systematic and/or large scale prostitution activities.
(d) It was not known whose the 334 unused condoms found in the metal bucket in the corridor of Kam Wong Kok was. Therefore, it is of no assistance to the magistrate in deciding the case.
(4) As a matter of fact, it is wrong for the magistrate to find on the sole basis that the undercover detectives were asked if they needed special service in the two visits they made to the premises that Kam Wong Kok was used “continuously” for prostitution (see paragraph 12 above(paragraph 89 of the Statement)). In other words, there is no evidence in the case to show the situation other than that on the two days in question. This error further undermines the magistrate’s conclusion that Kam Wong Kok was “wholly or mainly” used for (the organizing or arranging of) prostitution.
Discussion
17. The complaint in ground (1) is completely groundless.
18. The magistrate had explained clearly in paragraph 90 of the Statement why he found that Kam Wong Kok was a place used “mainly” for the purpose of prostitution or for the organizing or arranging of prostitution (see paragraph 12 above). There is no need to repeat here. Suffice to say that the analysis of the magistrate is convincing, particularly when the metal bucket containing the condoms was found in the corridor of Kam Wong Kok, viz., it was indeed found within the bounds of Kam Wong Kok. This is the first point. The second point is the brand and the quantity of the condoms. They were respectively 284 Durex and 50 Okomoto condoms. Contrasting this to a few or even a few dozens of condoms of different brands, what does 334 condoms of only two brands tell us? The answer can only be that someone had systematically bought them in large quantities. The third point is that those condoms were readily accessible. That is to say, the metal bucket where the condoms were kept was not locked. It can be seen from the photos that the metal bucket was right next to the staff lockers and the condoms had all been taken out of their boxes. It is obvious that to do so was to enable whoever needed them to use them whenever necessary. Besides, it is not possible that they had just been put in the bucket. The appellants submitted that since it was not known who the owner of the condoms was, this piece of evidence was of no assistance to the magistrate in deciding the case. This argument cannot be further from reality. Are they suggesting that the huge number of condoms had only to do with Chow and Law, the two public relations girls who defied the company’s rule (and brought condoms which were the same as the Durex condoms found in the metal bucket into the rooms), and the other people were completely in the dark and/or keeping their nose clean? In conclusion, based solely on the evidence regarding the condoms, it is sufficient to find that Kam Wong Kok was a premises used “mainly” (the magistrate only said “mainly” not “wholly”)for the purpose of prostitution.
19. The above conclusion would not be overturned by the various challenges the appellant made. For example, whether there was any paid sex going on between other customers and the public relations girl is a fact that was never here nor there. That is to say, it could be for a number of reasons that this was not found. It is not sufficient at all to constitute any doubt. Similarly, the fact that liquor was sold and karaoke facilities were provided in Kam Wong Kok could not disprove anything. This fact is not inconsistent with the fact that the premises were “mainly” used for (the organizing or arranging of) prostitution. Very often, it would only be a front that the pimps put up. Finally, I find it reasonable for the magistrate to conclude that the premises in question were used “continuously” for the purpose of prostitution for the reason that he himself had given. Of course, decided cases also said, depending on the circumstances, one single incident could be sufficient to prove all the elements of the offence (see paragraph 12 above (the Archbold passage the magistrate quoted in paragraph 83 of the Statement)), just as what I have done in drawing the conclusion basing on the condoms discovered. I should also mention that according to A2, the windows on the doors of the karaoke rooms in Kam Wong Kok were for the officers and he himself to view the situation inside the room during inspections. However, according to the evidence of PW1 and PW2, when Chow and Law were going to take off their own upper garment or dress, they did not try to cover the window first. This only goes to show that they were not afraid at all to be seen by people outside, including colleagues and the officers. This goes further to show that Kam Wong Kok was in fact a place that was “mainly” used for (the organizing or arranging of) prostitution. This is the only reasonable inference.
Ground of appeal(2)
20. The appellants complained that the magistrate erred in his handling of a key element of the offence. The said element required that A2 had “deliberately failed to take reasonable steps to prevent the premises in question be used for immoral purpose”. The operative words here are “deliberate failure”. (This ground of appeal is only applicable to A2).
Particulars
21. The appellant submitted:
(1) According to the decision in HKSAR v Cheung Kwan Kit [2002] 4 HKC 506, “deliberate failure to take all reasonable steps to avoid…” is the test to see if the licensee has failed in “not permit(ting) any person to occupy or use any portion of the premises for any immoral… purpose”.
(2) Nevertheless, the magistrate did not consider the question of whether A2 had “deliberately fail(ed) to” at all. This renders the conviction unsafe.
(3) As a matter of fact, the evidence in the case is not sufficient to prove that A2 had deliberately not taken all reasonable steps to prevent the premises in question to be used for immoral purpose. The reason being, according to the evidence of A2, he had taken all preventive measures in all respects (see paragraph 8 above (paragraphs 49 to 63 of the Statement)).
(4) On the contrary, the two major points that the magistrate queried (did not personally inspect the metal bucket that contained the condoms and did not telephone the officer/s-on-duty frequent enough) were not reasonable:
(a) As the licensee, it was not possible for A2 to inspect each and every corner of Kam Wong Kok. He had anyway already told the cleaners to pay attention to the premises to see if there were any forbidden items. Even as recent as three days before the material day, the cleaners did not report to him that they had found any.
(b) Deducting the necessary time he spent on traffic and sleep etc., in the seven hours that A2 merely had after going off duty, he telephoned the officer/s-on-duty twice. This had in fact taken up a lot of his private time (see paragraph 14 above (paragraph 103 of the Statement)). There was no reason to increase the frequency.
Discussion
22. The 2nd ground of appeal must fail too.
23. The Court of First Instance based their decision in Cheung Kwan Kit on the House of Lords decision in Vehicle Inspectorate v Nuttall [1999] 3 All ER 833. The question in that case was whether a coach owner had, by not checking the meter installed in the coaches, permitted his drivers to exceed their driving hours (permitting drivers to do so was against the law of the European Community on limiting driver’s driving hours). In their judgment, the House of Lords pointed out that in the relevant circumstances, the meaning of “permit” was “failed to take reasonable steps to prevent”. It did not concern the question of strict liability.
24. The decision of the House of Lords was fully adopted and quoted by Lugar-Mawson J in Cheung Kwan Kit. Since then, the test for whether condition 7 (that is, “permitting” any person to occupy or use the premises in question for any immoral purpose) has been breached has always been whether the licensee had “taken all reasonable steps to avoid or prevent the premises in question to be used for immoral purpose. This can be clearly seen from HKSAR v. Kao Chun Man that the magistrate referred to (see paragraph 14 above(paragraph 98 of the Statement)).
25. As regards “deliberate failure”, it is only an expression used to differentiate it from strict liability. It carries no other meaning apart from this. Lugar-Mawson J said this in paragraph 16 of the judgment:
“16. The House of Lords ... drew a distinction between positive acts, where a person ‘allows’ or ‘authorises’ another to do something, and omissions, which amount to a failure by the defendant to take reasonable steps to prevent a prohibited use or activity. When the second (and wider) meaning applies to the context of the offence charged, it is not an offence of strict liability on the part of the defendant. The court has to be satisfied, to the criminal standard, that there was a deliberate failure by the defendant, as opposed to a failure caused by an honest mistake, or accident,[6] to measure up to an objective standard. The court also has to be satisfied that there was a causal link between the failure and the prohibited result ...”（emphasis added）
26. If this is not clear enough, Lugar-Mawson J set out the two-tier test for section 46(1) of the Dutiable Commodities Ordinance in the paragraph that followed in plainer terms. In it, he no longer used the expression “deliberate failure” (paragraph 18):
“18. This case falls into the second category identified in Nuttall. A person holding a liquor licence is under a positive duty to take all reasonable steps that he, as a licensee, can reasonably take to ensure that all the conditions attached to the licence are observed. He is not required to do the impossible, but he is not at liberty to omit to take those reasonable steps. In short, the law requires him to act as a responsible licencee. In this case, after having been satisfied that immoral conduct had taken place in the nightclub, the magistrate should have asked himself: was what the first appellant did to prevent the nightclub from being used for an immoral purpose a reasonable performance of his duty as a licencee to ensure that it was not so used? ... If it was not, the magistrate should then have then considered, and been satisfied before proceeding to conviction, that there was there a causal link between the defendant’s failure to perform that duty and the fact that immoral conduct had taken place in the nightclub.”
27. In a nutshell, there is no omission or error in the magistrate’s analysis of charge (2) as argued by the appellant. On the contrary, it is absolutely reasonable for him to find that A2 had not done all he should. That he would only inspect the staff lockers and not the metal bucket by the side of the lockers that contained over 300 condoms was absolutely not to be believed. There is no doubt that it was a lie. Nonetheless, even if it was the truth, under the circumstances in question, A2 should surely be deemed not to have taken all reasonable steps to avoid or prevent the premises in question to be used for immoral purpose.
Decision
28. The appeals of the two appellants are dismissed.
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(Derek Pang) |
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Judge of the Court of First Instance |
Mr Pierre Lui, PP of the Department of Justice, for the Respondent
Mr Charles Chan, instructed by M/s Raymond Lam & Associates, for the
1st and 2nd appellants.
Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Patrick W.S. Cheung,Barrister-at-law.
[1] According to section 7(1)(b)(i) of the Dutiable Commodities Ordinance: “ in granting or renewing the licence or permit the Commissioner [of Customs and Excise] or an officer deputed by him to grant a licence or permit may impose such special conditions or restrictions in particular cases as he thinks fit.” Relevant to this case is a liquor licence. The licensed premises were the first floor of Yau Shing Mansion, Tung Choi Street, Kowloon. One of the conditions of the liquor licence (condition 7) was “The licensee shall not permit any person to occupy or use any portion of the premises for any immoral…purpose.”
[2] See paragraph 14 below (paragraph 98(b) of the Statement).
[3] See footnote 5.
[4] Paragraphs 64 to 69 of the Statement.
[5] These exhibits that the magistrate made clear he would not consider were some used condoms, wet paper towels and their wrapping bags or boxes. However, PW5 did in fact also find over 300 unused condoms from a metal bucket within the bounds of Kam Wong Kok: see paragraph 8 above, paragraph 63 of the Statement and paragraph 14 below (paragraph 101 of the Statement).
[6] If people are guilty of the offence even in situations where there is an honest mistake and accident, then section 46(1) is a strict liability offence.
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