THE QUEEN v. TAI WAI-HANG

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JUDGMENT

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Roberts, C. J.:

1. This is an application by the Attorney General under section 81A of the Criminal Procedure Ordinance (Cap. 221) for the review of a sentence, namely a fine of $2,500, imposed on TAI Wai-hang, the respondent, for managing an unlicensed massage establishment contrary to section 4(1) of the Massage Establishments Ordinance.

Facts

2. On 29th July, this year, a police officer went to the Jade Steam and Fingerpress Massage Establishment, during the late afternoon, posing as a customer seeking a massage, with which he was provided.. There is nothing in the Statement of Facts presented to the magistrate which suggests that anything was happening on those premises other than the carrying out of unlicensed massage. Thus the question of sentence must be approached on that basis, not on the basis that anything approaching vice was taking place on the premises.

3. The respondent pleaded guilty and was originally fined $2,000. The Crown sought a review of this sentence, which the magistrate increased to $2,500.

The Ordinance

4. The Massage Establishments Ordinance (Ordinance No 52 of 1983) which replaced the Miscellaneous Licence Ordinance (Cap. 114) in its application to massage establishments, contained various novel provisions, among them section 4(3) and (4) -

5. The intention of the legislature, as derived from the provisions of this section, was to provide a means of dealing with the situation in which the overt management of an unlicensed massage establishment changes from time to time, so that the courts are faced with a succession of managers, all of whom apparently have clean records. Thus section 4(4) enables the court to impose on a person, who is convicted of an offence under section 4(1) the enhanced punishment, provided by section 4(3)(b), if another person had been convicted of such an offence in relation to the same premises, during the three years before the conviction.

Certificate of previous convictions

6. Section 15 of the Ordinance enables a certificate, provided by a police officer of the rank of superintendent or above, to be produced in evidence in any proceedings under section 4, setting out any previous convictions recorded in relation to the same premises.

7. A certificate was produced before the magistrate, showing that, within the previous few months, there had. been no less than seven other convictions for managing an unlicensed massage establishment on the same premises. We suggest that, in future, when a person is charged under section 4 there should be some indication in the charge that the Crown proposes to rely on the provisions of section 4(4). This is because it is open to an accused person to avoid this provision, by satisfying the court that he did not know, and had no reason to suspect, that another person had been convicted in relation to the same premises. Since this burden lies upon him, it is reasonable that he should have notice of the fact that he is going to have to attempt to discharge it.

8. As we have said, a certificate under section 15 was produced before the magistrate. However, instead of giving to it the effect which section 4(4) requires, he purported to rely upon what he called an "established practice" to the effect that unless the defendant has been "warned previously", the operation of section 4(4) is invalidated.

9. If in fact any such practice has grown up, it is an improper one. The correct course for a magistrate is to apply section 4(4) in the terms in which it stands.

10. As a result of his reliance upon this practice, the magistrate, although he had a certificate before him, treated the respondent as if he were a first offender, liable only under section 4 (3) (a), and not (as he should have done) liable to the enhanced penalties provided by section. 4(3) (b).

Other matters

11. The Attorney General applied to the magistrate in accordance with the provisions of section 81A(2A)(a) of Cap. 221 for a statement of the facts found by him or admitted before him and of the reasons for the sentence. He made this application to the magistrate. Although the magistrate took objection to this direct approach, it appears to us to be correct, by virtue of the terms of section 81A(2B) of Cap. 221, which requires the documents sought in such application shall be delivered to the Attorney General, within seven days of the "request made in writing to the magistrate".

12. We urge magistrates, when asked for a statement of the facts and of the reasons for sentence, to confine themselves to what the ordinance requires. In this case, the magistrate allowed himself to deliver a strong criticism of the form and purpose of the section in terms which, in our view, were unwise. It must be expected that, from time to time, magistrates are called upon to apply laws which they may personally find distasteful. Nevertheless, it is the task of the courts to apply the laws; it is for the legislature to decide what laws are necessary in the territory.

13. It is clear from the high level of fines provided by section 4(3)(b) that the legislature has decided that the suppression of unlicensed massage establishments is a matter of greater importance than might otherwise have been expected from the mere absence of a licence, based perhaps on a view that this kind of establishment can easily lead to other forms of crime or evil.

Quantum of sentence

14. On this basis, we are sure that the sentence of $2,500 was manifestly inadequate, even on the assumption (which as we have said was a wrong one) that the respondent was a first offender and should be treated as such.

15. We suggest that magistrates ought to consider, even when they are dealing with a first offender under section 4(3)(a), that fines should start at $5,000 and go upwards. Where either the offender himself has previous convictions of this nature, or previous convictions of this nature are attributed to him by virtue of section 4(4), magistrates should consider a much higher starting figure. They should also, in appropriate cases, decide whether or not either a suspended or substantive sentence of imprisonment should be imposed.

16. Consequently, had the magistrate dealt with this matter as we feel he should have done, namely, by applying section 4(3)(b) of the Ordinance, it would have been a proper case for the imposition of at least a suspended sentence, since there had been seven convictions for the same offence on the same premises within the previous seven months.

17. The respondent is a young man of 24 with no previous convictions. He worked in the establishment for only one month. He has left it and secured himself a decent job elsewhere. He has no intention of returning to this kind of work. We are therefore not disposed to interfere with his sentence and the application by the Crown is dismissed.