R. v. LI KIN CHEONG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 334 OF 1996

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J U D G M E N T

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1. The Appellant was convicted of managing a vice establishment contrary to s.139(1)(b) of the Crimes Ordinance, Cap.200.

2. Two plain clothes officers posing as clients went to the premises in question on 20th May 1995 at 3:45 p.m. They were greeted by the Appellant who asked each of them if they knew any girl there. They both said "No". The Appellant then said he would introduce girls to them and each one would cost $430 for the whole set of service including sexual intercourse. They agreed. One officer went to room No.3 on the premises after taking a shower. The other officer went into room No.8 on the premises also after taking a shower. Both waited in their own rooms for a while. The Appellant took a girl to room No.3 first where the girl performed acts in the nature of prostitution towards the officer. The Appellant then took another girl to room No.8 where she also performed similar acts in the nature of prostitution towards the officer in the room. Other police officers then arrived at the scene. After the two officers reported what had happened to them on the premises, the Appellant was arrested for the offence.

3. There was a cautioned statement made by the Appellant to the police after his arrest. But the magistrate ruled it was not admissible because of breaches of the rules regarding questioning of suspects in custody.

4. The Appellant did not give evidence.

5. The magistrate found the offence proved beyond reasonable doubt. In convicting the Appellant, the magistrate said he concluded that the police officers were witnesses of the truth and that it was safe for him to rely on their testimony. He believed the police officers. He added :

" It was submitted to me that there was insufficient evidence of 'wholly or mainly'. In my view, if two people enter a premises one after another in a short period of time, and are separately offered sexual services of this nature, there is a virtually inescapable inference that the premises are used wholly or mainly in connection with prostitution. The exhibits seized do not go far enough, in my view, to negate that.

I found the prosecution had proved beyond reasonable doubt that the accused had been managing the premises at the time in question and that it was being run as a vice establishment."

6. There are two short grounds of appeal. The first complaint is that the above quoted finding of the magistrate was wrong in law and the second complaint is that the magistrate failed to consider whether or not the premises were being kept as a vice establishment.

7. It is convenient to deal with the second ground first. If the appeal is successful on this ground, there is no need to deal with the first ground.

8. Mr Marash for the Appellant submitted that there was no evidence of any condoms found in the premises except that one of the girls had taken out one for the officer to use. He submitted that this case was different from other cases where there were pornographic videos for clients to view before engaging in sex acts and cases where there were other prostitutes on the premises, which could have shown prior persistent user of the premises as a vice establishment. More importantly, the magistrate had not addressed his mind to the crucial issue of whether the premises were kept as a vice establishment. He referred to R. v. Lau Wai Kin MA787/85 and R. v. Cheong Luen Shing MA823/94. Both dealt with the meaning of "premises kept as a vice establishment". In both cases, McMullin V.P.'s dictum in R. v. Wong Chi Hung (1982) HKLR361 at 365 as to what is required to prove that the premises were kept as a vice establishment was cited as well as what Fuad J.A. said in this respect in R. v. Chong Ming Chin CA294/84. Suffice to say that these state that one single isolated user may not be sufficient to establish that the premises were kept as a vice establishment but it may be otherwise if there were surrounding circumstances that the premises had been so used prior to the police raid or there was some degree of continuity of such user.

9. In R. v. Lam Wing Nin and another MA651/93, Bewley J. referred to the judgment of Keith J. in R. v. Law Tin Ching MA368/93 where Keith J. also referred to Wong Chi Hung in his discussion on what would amount to the premises being kept as a vice establishment. He also referred to R. v. Chong Ming Chin. Keith J. found this an essential ingredient of an offence under s.139(1)(b) and failure to consider this ingredient would result in the conviction being quashed. Bewley J. found the same in Lam Wing Nin and allowed the appeal because the magistrate had not considered this issue.

10. Mr Wong for the Crown submitted that after he re-read the judgment of Keith J., he felt that the position of the Crown was weaker than he thought. Except noting that there was some reference in the evidence that the Appellant asked if the officers had any regular lady, Mr Wong did not think he could take the matter any further.

11. In the present case, the magistrate in his findings was concentrating on the element of "used wholly or mainly for prostitution". He did not seem to have addressed his mind to the issue whether there were surrounding circumstances to show that the premises had been so used prior to the occasion of the user by the two police officers. Thus, he had not considered the essential ingredient of whether the premises were "kept as a vice establishment". Apart from this, except that the premises were divided into rooms, there was no evidence as to show a pattern of such user of the premises. The conviction cannot stand. The appeal must be allowed and the conviction quashed. The sentence is set aside. The Crown quite rightly has not sought a retrial.