HKSAR v. JIANG QING

[English Translation]

HCMA 524/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 524 OF 2006

(ON APPEAL FROM ESCC NO. 82 OF 2006)

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JUDGMENT

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1. The appellant, Jiang Qing, was convicted after trial before a magistrate on three counts of managing a vice establishment, contrary to section 139(1)(b) of the Crimes Ordinance, Cap. 200. She now appeals against conviction.

Prosecution’s case

2. On three occasions, i.e. 21 April 2005 (Charge 1), 28 April 2005 (Charge 2) and 6 May 2005 (Charge 3), undercover police officers visited the karaoke room at New Star Moon Nightclub (transliteration) (新星月夜總會). On the first night, the appellant asked PW1 and PW2 whether they wanted “Muk Yu” (i.e. the colloquial term for prostitutes), saying, “Most of them are willing to go out to have a poke.” “One que usually costs $800 to $1,000. Just pay the girls direct.” Shortly afterwards, the appellant brought in two girls. The two witnesses then took the girls to a nearby hotel, where each witness took a bath with one of the girls, who fondled the genital of the witness.

3. On the second night, the appellant took two girls to PW1 and PW2, saying that the two girls could go out to make love, and that the fee was the same as that on the previous occasion, but 10 extra “tickets” (i.e. $250) had to be paid to the company for taking the girls out.

4. What happened on the third night was the same as that on the two previous nights, save that the appellant talked less. After two girls were brought in, they went out with the witnesses, took a bath with them and fondled their penises. Then other police officers arrived at the scene.

Defence case

5. The appellant testified at trial. She said that she worked as a “public relations officer” and had taken girls to PW1 and PW2 but had not uttered the words as alleged by them. She merely arranged for the girls to “buy take-out time” and she neither knew nor cared what they did after they were taken out.

Reasons for verdict

6. The magistrate made the following assessment and conclusion:

The prosecution witnesses answered the questions frankly without exaggeration. … Furthermore, the prosecution witnesses’ testimony does not contain any inherent improbabilities or impossibilities. In fact, the defendant’s case is that she had never said anything about arranging prostitution, but she did not point out the police officers’ motive in falsely accusing her. I find the witnesses reliable and truthful.

The crucial issue of this case is whether there was a connection between the defendant and the sexual services. From the facts stated above which I need not repeat, a close connection can clearly be seen beyond reasonable doubt, and I am satisfied beyond any doubt that this link did exist.

As to the law on vice establishment, I have referred to Wong Chi-hung [1982] HKLR 361, Tam Wai-tin [1999] HKCF 1968 (HCMA 306/1999) and other cases regarding ‘persistence’, ‘continuity’ and ‘one single visit’. Although prostitution did not take place inside the nightclub in question, the defendant used the premises for and in connection with the arranging of prostitution. Hence, the place in question was a ‘vice establishment’: see section 117(3), Cap. 200 of the Laws of Hong Kong.

As to the definition of ‘managing’, the High Court has, in cases such as Tam Wing-kwong [1988] 2 HKLR 133 and Cheong Luen-shing [1994] HKCFI 282 (HCMA 823/1994), made it clear that arranging prostitutes for customers is ‘managing’.

Grounds of appeal

7. The perfected grounds of appeal can be summarized as follows:

(1) The magistrate erred in requiring the appellant to point out the police officers’ motive in falsely accusing the appellant. Such requirement is consistent with the burden of proof and violates the presumption of innocence.

(2) The magistrate erred in regarding the police witnesses as particularly reliable.

(3) The magistrate did not or did not clearly make a finding on the following matters:

(i)  the nature of the connection between the appellant and the sexual services;

(ii)  whether the appellant’s evidence was accepted;

(iii)  failing to sufficiently consider the appellant’s evidence.

(4) The magistrate did not or did not sufficiently deal with the issue of whether the premises in question were “kept” as a vice establishment.

(5) The magistrate failed to consider whether the said premises were used wholly or mainly for organizing or arranging prostitution.

Discussion

8. Mr Ma for the appellant cited the judgment of the Court of Final Appeal in Lee Fuk Hing v HKSAR (FACC 7/2004), in which the trial judge had directed the jury to consider why the police witnesses would want to subject themselves to disciplinary action or criminal prosecution by behaving like robbers. The Court of Final Appeal held that this direction was erroneous as it categorized the police officers as particularly credible witnesses.

9. Mr Ma also submitted that the magistrate’s finding that the prosecution witnesses were frank and did not exaggerate was based on the preconception that they were police officers and was putting the cart before the horse.

10. In my view, all that the magistrate meant was that he did not see why the police officers in this particular case should falsely accuse the appellant. The magistrate had not categorized the police officers as particularly credible, nor had he required the appellant to prove that the police officers had falsely accused her. The assessment of witnesses is a function of the trial judge, and in general, unless there has been a material irregularity or error, the appellate court will not interfere with the assessment.

11. Mr Ma submitted that the magistrate had not expressly rejected the appellant’s evidence. However, given that the magistrate believed the prosecution witnesses and accepted their evidence, this would inevitably mean that the appellant’s evidence was rejected.

12. Mr Ma submitted that, even if the magistrate accepted words such as “Muk Yu” and “one que”, he failed to consider whether the appellant understood the meaning of those words in the same way as he did. “Muk Yu” and “one que” are colloquial terms for prostitutes and sexual intercourse respectively. Mr Ma also took issue with the magistrate’s finding that it was beyond any doubt that there was a connection between the appellant and sexual services, contending that the nature of the connection had not been made clear. It is, however, obvious from the magistrate’s Statement of Findings that the connection meant the arranging of prostitutes for customers.

13. I see no error on the magistrate’s part in his acceptance or rejection of the evidence.

14. Mr Ma submitted that the magistrate had not clearly set out the elements of the offence and had failed to consider the element of “keeping” the premises as a vice establishment. When he reiterated the charge, the magistrate only used the words “managing a vice establishment” and overlooked the fact that the charge was one of “managing premises which were kept as a vice establishment”. Mr Ma submitted that the magistrate’s statement that the crucial issue of the present case was the connection between the appellant and sexual services also indicated that he had overlooked the issue of “keeping”.

15. Section 139(1)(b) of the Crimes Ordinance provides as follows:

A person who on any occasion –

(a)    …

(b)   manages or assists in the management, or is otherwise in charge or control, of any premises, vessel or place kept as a vice establishment,

shall be guilty of an offence.

16. The elements of the offence of managing premises kept as a vice establishment are as follows:

(1)  Whether the relevant premises were a vice establishment;

(2)  If yes, whether the relevant premises were kept as a vice establishment;

(3)  If yes, whether the appellant managed the relevant premises. 

17. Under section 117(3) of the Crimes Ordinance, “vice establishment” is defined as follows:

(a)  the premises … or place are or is used wholly or mainly by 2 or more persons for the purposes of prostitution; or

(b)  the premises … or place are or is used wholly or mainly for or in connection with the organizing or arranging of prostitution.

18. Section 117(3)(a) covers prostitution at the premises, whereas section 117(3)(b) covers the situation to which section 117(3)(a) does not apply, such as arranging prostitutes at the premises while prostitution takes place outside the premises such as in a hotel. The facts of the present case fall within section 117(3)(b).

19. “Keeping” means maintaining the premises, knowing that they are being used as a vice establishment and having some measure of control over their use as such, although this control may be short of active management on a continuous basis. Furthermore, a defendant can at any time act as a keeper, manager, or controller (see Wong Chi-hung, supra, citing Tam Kin-leung, Crim. App. No. 1081 of 1981).

20. To establish “keeping”, evidence is usually required which is sufficient to show some degree of persistent user involving more than one transaction (see Wong Chi-hung). However, the evidence of one single visit could still be sufficient if there were other circumstances justifying an inference of habitual user (see HKSAR v Yu Wai-shun HCMA 751/1997).

21. Regarding “wholly or mainly”, if certain premises were used for organizing or arranging prostitution during a portion of a day, say a few hours, or a number of days in a month, it cannot be gainsaid that because for the greater portion of the day or month such premises were used for legitimate business, then during those few hours such premises were not used wholly or mainly for organizing or arranging prostitution as a vice establishment, because it is never the intention of the law to provide an implied defence that for the greater portion of every day the premises were used for legitimate business (see AG v Tang Ping-wing Crim. App. No. 411 of 1981).

22. As for “managing”, introducing prostitutes to customers falls within the meaning of managing (see R v Cheong Luen-shing [1994] 3 HKC 451). Mr Ma has indicated that this appeal does not concern the issue of “managing”.

23. Mr Ma submitted that arranging prostitutes did not mean that the premises were kept as a vice establishment. In HKSAR v Ching Chui-shan Patsy (HCMA 1030/2005), the magistrate did not mention the element of “keeping”. He only stressed in his conclusion that the Finnish sauna house in question was a vice establishment and that the appellant knowingly participated in managing that sauna house, and he never addressed the issue of “keeping”. On appeal, Tong J declined to make supplementary findings for the magistrate and allowed the appeal.

24. Mr Ma further submitted that the magistrate failed to take into account the condition of the nightclub. It was not known how many rooms there were. Nor was the proportion of the arranging of prostitution to the whole operation of the nightclub known. And there might be black sheep that caused the trouble. Therefore, the element of “wholly or mainly for the arranging of prostitution” was not established.

25. The present case can be distinguished from Ching Chui-shan. Although the magistrate did not specify the “keeping” element of the offence, the case of Wong Chi-hung, to which he referred, was exactly concerned with the keeping of a vice establishment. Moreover, the concepts of persistence, continuity and one single visit, which the magistrate had mentioned, all went to the elements of “keeping” and “whole and main user”. I do not agree that the magistrate failed to consider the issue of “keeping”. Although he stated that the crucial issue in the present case was the connection between the appellant and the sexual services, he also set out other matters which he had considered in his Statement of Findings.

26. Even if the magistrate had omitted to consider the issue of “keeping”, the evidence before the court shows that two police officers had visited the nightclub on three occasions, and on each occasion the appellant had, without much ado, introduced two prostitutes to them. This being the case, the only reasonable inference to be drawn is that the nightclub was kept as a vice establishment. This is also the inference that the magistrate would certainly have drawn.

27. The appeal is accordingly dismissed.