HKSAR v. WONG YIU WAH AND OTHERS

HCMA 508/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 508 OF 2001

(ON APPEAL FROM ESCC 2210/2000)

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D E C I S I O N

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The 1st Appellant's application for costs:

1. I have allowed the 1st Appellant's appeal against conviction and he now applies for costs. Mr Chain submits that the general principle of awarding costs in criminal cases is that costs should be awarded to an acquitted defendant unless there are positive reasons not to do so. These reasons are, in general, that the defendant was acquitted on a technicality, or he had brought suspicion upon himself, or had misled the prosecution. These principles are correct.

2. Mr Chain submits that the appeal was not allowed on a technicality because the trial magistrate was not satisfied that the 1st Appellant had knowledge of the immoral activities of the hostesses inside the Club. That I respectfully disagree. I held at Paragraph 34 of my judgment:

"In my view, there is ample evidence of the system in which the premises was operated. The premises was dark. When the undercover officers entered, they saw two expatriate males with girls sitting on their laps. They were immediately approached by the 3rd and 4th Appellants in a sexually active manner and they touched the officers' private parts. The 2nd Appellant then enquired if the officers would take the hostesses out. She told the officers that it was the company's regulation that the charge was $2,750, all inclusive, for three hours. The 3rd and 4th Appellants then explicitly suggested the officers to take them out to have sex. They did not demand extra charge for their sexual services. Thus the $2,750 was inclusive of their sexual services. The officers were charged $7,048 allegedly for 'drink and dinner' when there was in fact no dinner served. According to the price list, the charge for taking a hostess out was $4,000 and not $2,750 nor what the officers were charged. This shows that the price list was a sham and the charge of $2,750 received by the Club included an element for the immoral services offered by the hostess. Both officers received identical treatment. These together with the dark condition of the premises, the concerted action of the 2nd Appellant with that of the 3rd and 4th Appellants and how the other hostesses were behaving towards two other customers suggest what happened to the officers was part of a system in which the Club operated, i.e. offering immoral services to its customers. The 1st Appellant was under a duty to supervise the premises personally. In the circumstances, could he have no knowledge of such a system? Could he not have permitted the immoral activities performed by the 3rd and 4th Appellants as part of that system? I think the evidence in the present case is so strong that not only is there a case to answer for the 1st Appellant for an offence contrary to section 46, but also as to compel him to give an explanation. If he does not put forward any credible explanation of his lack of knowledge of the system or as to cast doubt on the prosecution case, or if his explanation is rejected, it is open to the magistrate to draw as the only irresistible inference that the immoral services offered by the hostesses is part of the system in which the Club operates and the licensee has knowledge of the system and permitted the immoral activities. That would be sufficient to bring home a conviction under section 46 without praying in aid of section 46A."

3. I am of the view that there are sufficient evidence for the trial magistrate to draw as the only irresistible inference that the immoral services offered by the hostesses was part of the system in which the Club operated and the licensee, i.e. the 1st Appellant, had knowledge of that system and permitted the immoral activities. The magistrate was slow to draw that inference and was attracted by the court prosecutor's suggestion to convict the 1st Appellant of an offence contrary to section 46A. While I feel I am unable to interfere with the magistrate's failure to draw that inference, that does not mean the evidence is not there. And I am entitled to take into account that evidence when considering whether to deprive the 1st Appellant of his costs. In my view, the fact that the trial magistrate was misguided on a point of law must be a technicality.

4. Even if that were not a technicality, by operating the Club under a system whereby immoral services were being offered by its hostesses, the 1st Appellant has brought suspicion upon himself. On the facts as I outlined in Paragraph 34 of my judgment, there is not a single reason why the 1st Appellant should not have been prosecuted. His appeal was allowed with great reluctance on my part. Justice would require that he be deprived of his costs both in the court below and on this appeal.

The 2nd to 4th Appellant's application for certificate:

5. Next, Mr Chain applies on behalf of the 2nd to 4th Appellants for a certificate under section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap 484, that a point of law of general and public importance is involved. The point of law as he outlined is "whether a business in private premises which opens to the public for business is or can be a public place within the meaning of 'public place' in section 117 of the Crimes Ordinance, Cap 200?"

6. Mr Chain submits that there is another line of authorities against my decision. He has fully addressed me on those authorities and I have more than fully analysed them and distinguished them in Paragraphs 4 to 17 of my judgment. Very briefly, the phrase "public place" in R v Chan Yuk-chun [1965] HKLR 693 was decided on the basis of a wholly different statutory definition under the Summary Offences Ordinance, Cap 228. R v Ng Chung Sang [1985] 1 HKC 311 is a decision on a wholly different set of facts involving a construction site where obviously the public were not invited to enter or free to have access as of right. In R v Chan Chu Shi [1990] 1 HKC 341, the prosecution simply failed to adduce evidence whether the place in which the offence allegedly took place was a public place. The factual basis of those cases are different from the one before me.

7. Mr Chain submits that the decision involves a point of law of great and general public importance and has potential ramification. He even argues that it may affect barrister's chambers as well. In my view, whether the Club or a barrister's chambers is a public place is a question of fact and each case depends on its own facts. The legal submissions show that the decision is of great interest and even importance, but only so far as the appellants are concerned. Each case depends on its own facts. The law is well settled. In my view, the decision does not involve any question of law of great and public importance. For the above reasons, I refuse to certify that any point of law of great and general importance is involved in the decision.