HKSAR v. FENG, XIUHUA

[English Translation – 英譯本]

HCMA 692/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.692 OF 2013

（ON APPEAL FROM FLCC NO. 2374 OF 2013）

______________________

JUDGMENT

1.  Following a trial before Deputy Magistrate Cherry Hui (the magistrate), the appellant was convicted of one count of “Assisting in the operation of an unlicensed massage establishment without a licence”[1] and was fined $5,000.  The appellant appeals against conviction.

Brief facts of the case

2.  On 23 April 2013, a police undercover agent, posing as a customer, went to a massage parlour named “喜足堂正宗足底保健按摩中心” in Kwong Fuk Road, Tai Po.  He was respectively received by a male and a female.  The female first agreed on the price[2] with the undercover agent.  The male then arranged over the phone a masseuse for him.  Later, the appellant arrived at the massage parlour and took the undercover agent into a room for massage service which included back and lower back massage.

3.  It was confirmed that no licence was in force for the operation of the said massage parlour.  The appellant was charged together with the male and the female.  The male was charged with the offence of “Operating an unlicensed massage establishment without a licence”, whereas the appellant and the female “Assisting in the operation of an unlicensed massage establishment without a licence”.

4.  The facts of the case revealed that apart from showing the undercover agent into a room for a massage, the appellant also, upon finishing her job, asked the undercover agent to pay $320 at the counter.

5.  The appellant testified at the trial that she was merely a part-time masseuse and did not know that the massage parlour was unlicensed.

Groundof appeal

6.  The appellant was represented by counsel during the trial.  She now acts in person.  At the appeal hearing, the appellant made it plain that her only ground of appeal was that she was merely a part-time masseuse and did not “assist in the operation”（協助經營）of the said massage parlour.

7.  The magistrate cited the case of Kung Oi-Ho[3] in considering whether the appellant’s conduct amounted to “assisting in the operation”（協助經營）.  Her analysis was as follows:

“34. The offence involved in this case is “Assisting in the operation of an unlicensed massage establishment without a licence”, contrary to Section 4(1) of the Massage Establishments Ordinance, Cap. 266.  I have referred to The Queen v. Kung Oi-Ho, Leung Wing-Kwong, Wu Sung-Ping, HCMA747/1985, in which 3 defendants were involved.  As to D3, the Court of Appeal stated:

‘As to D3, the words uttered by D2 to PW1 at the Hoi Shing Steam Finger Care in the presence of D3 and the instructions given by D2 to her to take PW1 to the Sun Hoi Bun Villa, all of which she tacitly accepted without demur, coupled with what she herself said to D1 and with the massage she performed, amounted to clear evidence that she knowingly assisted in the management of a massage establishment. Her appeal therefore also fails.’

35. I have carefully considered the facts of the present case, which show that the appellant’s role was a masseuse.  Playing the role of a masseuse constituted the key element of operating a massage establishment.  I also note that the appellant was a part-time masseuse only.  However, whether the appellant was a part-timer or full-timer does not really matter.  The question is whether the appellant at the material time “assisted in the operation”（協助經營）of the said massage parlour.

36. According to the agreed facts, the appellant not only performed a massage, she also took PW1 into the room.  The appellant’s conduct was similar to that of D3 in HCMA747/1985.  The appellant pointed out in court that it was D2 who collected the money and she did not bother about it. However, as reflected in the admitted facts, that was not really the case, since the appellant did ask PW1 to pay $320 Hong Kong dollars for the body massage she performed.  Such evidence showed that the appellant not only performed massages, but she was also responsible for receiving customers.  She knew about the prices for massage services and had to make sure that the customer would pay the amount.  What the appellant did was to “assist in the operation”（協助經營）of the said massage parlour, which was unlicensed.

37. Having considered the appellant’s evidence, I found it to be not credible and unreliable.  She was not telling the truth.  I disbelieve that she did not know“喜足堂正宗足底保健按摩中心”was an unlicensed establishment providing body massage services.  I also found that the appellant did assist in the operation of the said massage establishment for the operation of which a licence was not in force.”

8.  At paragraph 35 of her statement of findings, the magistrate set out that she was considering whether the appellant “assisted in the operation”（協助經營）of the said massage parlour.  Nonetheless, the authorities she relied on related to [appellants who] “assisted in the management”（協助管理）but not “assisted in the operation”（協助經營）.  It should be noted that under the Massage Establishments Ordinance, the English equivalent to the Chinese expression “協助經營” is “assisted in the operation”.

9.  Having gone through the submissions made by the defence counsel at the trial, the authorities he cited as well as the magistrate’s analysis in her statement of findings on the arguments advanced by the defence counsel, it appears to me that in considering the issue, the magistrate mixed up the two different elements of the offence, namely “協助管理” (assisted in the management) and “協助經營” (assisted in the operation).  All the authorities and legal principles that the magistrate dealt with in paragraphs 23 to 33 of her statement of findings relate to the English expression “assisted in the management” but not “assisted in the operation”.  Obviously, the magistrate wrongly thought that the English expression“assisted in the management” was equivalent to the Chinese expression  “協助經營” (assisted in the operation).

10.  In my judgment, the authorities cited by the magistrate were not directly relevant to the present case.  She did not give a correct analysis on the definition of “協助經營” (assisted in the operation) in the Ordinance.  Since the parties did not provide the court with any case law or legal authority regarding the definition of “協助經營” (assisted in the operation) in the first appeal hearing, I adjourned the hearing so as to allow the respondent the opportunity to assist the court in this regard.

11.  On behalf of the respondent, Miss Mickey Fung, Senior Public Prosecutor of Department of Justice, informed the court in the second hearing that she was unable to find from her research any authority which was directly related to the definition of “協助經營” (assisted in the operation) under the Massage Establishments Ordinance.  And she suggested that cases related to Section 5 of the Gambling Ordinance could serve as a reference.  It is stipulated in Section 5 of the Gambling Ordinance that a criminal offence is committed when a person either “營辦” (operates) or “協助經營” (assists in the operation of) a gambling establishment.  And under that very section, the English equivalent to the Chinese term “營辦” is “operate”, which is the same English equivalent to the Chinese term “經營” under the Massage Establishments Ordinance.

12.  In the case of Tang Wig Chung[4]，the Court of Appeal explained the meanings of “assist in the management” and “assist in the operation” respectively[5]:

“In s. 5 the operator is put in a category by himself, distinct from the person who manages or otherwise has control. It seems reasonable to suppose that the legislature viewed the operator as the person in overall control, the person with the final say in how, where and when, and even whether, the enterprise is to be carried on. He may be remote from the day to day running of the business which can be left in the hands of a manager. If that is the proper way to look at the section, it may be that a person who cannot be said to assist in the management of the business might nevertheless be said, to assist in the operation thereof.”

13.  I agree that the authorities related to Section 5 of the Gambling Ordinance are of reference value in the present case.  The Chinese terms “營辦” and “經營” are similar to each other and their English equivalents are both “operate”.  As the Court of Appeal spelt out, the meaning of the two Chinese terms is different from that of the term “管理” (manage).

14.  The Court of Appeal’s view is that an operator（營辦者）is the person in overall control of the business, i.e. he/she has the final say in when, where or even how the enterprise is to be carried on.  Such a role is distinct from one which involves the day to day running and management of the business.  In my view, the same interpretation applies to “經營者” (operator) too.

15.  In my opinion, on a literal reading, “an operator” （經營者）occupies a more important position than “a manager” （管理者）.  An “operator” plays a more crucial and decisive role at the top management level.  Of course, an “operator” can at the same time be a “manager” as well.  It depends on how he/she actually functions during the course of business.

16.  As far as the appellant was concerned, she only proceeded to the place in question for work at call and performed massages on customers.  She did take the undercover agent to the massage room and remind him that he should pay $320. Clearly, however, she merely did so in her capacity as part-time masseuse.  She would not make any decision on the business-related issues at a higher level concerning the massage parlour, say, the location of the massage parlour, the business hours, the prices for services and so on.  In view of the above, the appellant was not an “operator” under the Massage Establishments Ordinance.

17.  However, did the appellant’s conduct amount to “assisting in the operation”（協助經營）?  The magistrate relied on the case of Kung Oi-Ho and said that leading the customer to a room, providing massage service and telling the customer the amount he should pay already constituted “assisting in the operation”（協助經營）.  As previously noted, the issue under consideration in Kung Oi-Ho was “assisting in the management”（協助管理）and not “assisting in the operation”（協助經營）.  Furthermore, in that case, the defendant’s degree of involvement in the arrangement for massage service was greater than that of the appellant.  The defendant in question was present when the manager and the customer were negotiating the price as well as the other arrangements.  And subsequently, the defendant took the customer to a nearby villa, which was the alleged unlicensed massage parlour in that case, for massage service.

18.  Miss Fung submitted that masseuses were indispensible to the running of a massage establishment.  Therefore, masseuses must be assisting in the operation of the massage establishment.  I do not share the same view.

19.  Section 4(2) of the Massage Establishments Ordinance provides that it shall not be a defence that the accused did not know that the massage establishment was not licensed for operation.  According to Section 4(1), “Any person who assists in any capacity in the operation of a massage establishment for the operation of which a licence is not in force” commits an offence.  Therefore, if such a broad definition is given to the term “assisting in the operation”（協助經營）as suggested by Miss Fung, the coverage of the ordinance will be widened as a result to include all the people who work for a massage parlour, such as a cleaner.  I do not think this is a proper interpretation of the Ordinance.

20.  In my view, “assisting in the operation” （協助經營）should only include the acts of rendering assistance to the business operation, for example, advising on the policies to be decided at a high level as mentioned in paragraphs 14 and 16 above, or implementing those policies.

21.  The appellant of the present case is a part-time masseuse.  It can hardly be said that she took any part in “assisting in the operation” （協助經營）of the massage parlour.  What she did extra, including taking the customer into a room and reminding him of paying the service fee (which was neither fixed nor collected by her), was only incidental to her job.  In terms of her level of involvement, what she did simply could not be regarded as “assisting in the operation” （協助經營）.

22.  Although the magistrate found the appellant was aware that the massage parlour was unlicensed, I do not think this aspect has any bearing on deciding whether the appellant’s conduct amounted to “assisting in the operation”（協助經營）of the said massage parlour.  Furthermore, I am of the view that the magistrate’s reasons for arriving at such a finding were unconvincing.

23.  The magistrate found the appellant was aware that the massage parlour was unlicensed for the following reasons:

“Having considered the appellant’s evidence, I found it to be not credible and unreliable.  She was not telling the truth.  I disbelieve that she did not know “喜足堂正宗足底保健按摩中心” was an unlicensed establishment providing body massage services.  I also found that the appellant did assist in the operation of the said massage establishment for the operation of which a licence was not in force.”

24.  The magistrate disbelieved the appellant’s evidence and thus her claimed ignorance of the fact that no valid licence was in force for the massage parlour.  In other words, the magistrate found that the appellant knew there was no licence in force for the massage parlour.  Yet, she did not explain further as to why she thought the appellant knew that the massage parlour was unlicensed.  In my view, by so doing, the magistrate wrongly shifted the burden of proof onto the appellant.  Therefore, the finding on this issue was unsafe.

25.  For the above reasons, I conclude there was insufficient evidence to prove that the appellant “assisted in the operation” （協助經營）of an unlicensed massage establishment.  The appeal is allowed, the conviction quashed, and the fine set aside.