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HCMA000815/1996
| IN THE SUPREME COURT |
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1996, No. 815 |
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Magistracy Appeal |
| BETWEEN |
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THE QUEEN |
Respondent |
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WEI YUNG CHUN |
Appellant |
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Coram: Hon Mayo JA in Court (sitting as an additional High Court Judge)
Date of hearing: 19 September 1996
Date of judgment: 19 September 1996
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JUDGMENT
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Mayo JA:
1. The appellant is appealing against his conviction for managing a vice Establishment.
2. The facts were very simple. Three police officers attended late in the evening of 9 April 1995 an establishment using the name Kam Yat Sauna. All the officers gave evidence that they were met at the premises by the appellant. They were taken to separate rooms. They were asked what girl they wanted and were told that for $430 they would receive a massage, oral sex and be permitted to have sexual intercourse with the girl. While they were waiting for the arrival of the girl they viewed pornographic films on a television set.
3. In each case a girl went to one of the police officers and started massaging him in an indecent manner. Another police officer then entered the rooms and all the officers revealed their identities.
4. According to the evidence of PW1, when it was put to the appellant that he was being arrested for managing a vice establishment he asked to be given a chance as he couldn't find a job so he worked there. He later made a cautioned statement which in my view clearly admitted the offence.
5. The appellant defended the case before the magistrate and claimed not to know what the girls had been doing in the rooms.
6. On the appeal the appellant was represented by Mr Adrian Bell. He submitted that the magistrate had made no finding that the appellant had been the manager of the establishment rather than being a mere employee. He submitted that the evidence of the Police Inspector when he visited the premises at 11.50 should not have been admitted as evidence as no caution had been administered to the appellant.
7. He went on to argue that if the damaging admission made by the appellant had been excluded it was possible that the magistrate may not on the remainder of the evidence have been satisfied that the appellant had been managing the premises.
8. A point which needs to be made is that it is necessary to differentiate between statements made when the three police officers entered the premises at 10.20 and the statement made when the Inspector arrived at 11.50. Mr Bell did not attempt to submit that the conversation which took place at 10.20 was inadmissible because at that stage there was insufficient reason for the officers to administer a caution.
9. It seems clear to me that the earlier conversation if accepted as being correct demonstrated that the appellant was assuming a significant role in the operation of the establishment and I do not consider that even if the learned magistrate had excluded the admission made to the Inspector at 11.50 this would have made any difference to the view he took of the matter.
10. Even if I am wrong on this if the cautioned statement is read as a whole there was overwhelming evidence that the role which was being assumed by the appellant brought him within the scope of being a manager of the establishment rather than just an employee. It is necessary to have regard to the nature of the functions the appellant was performing rather than simply considering his employment status. It is by no means unusual for a manager to be a salaried employee of a business of this nature.
11. O'Connor J considered what might constitute managing a vice Establishment in R. v. Tam Wing Kwong & Ors [1988] HKC 849. At 852 he states:
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" It is said, on the appeal, that s139(b) of the Crimes Ordinance creates separate offences of managing, assisting in the managing and being in charge of control, and that the admission by the first appellant could only establish the offence of being in charge, or at most the offence of assisting in the management, but that it could not establish that he was managing. The learned magistrate dealt with this matter relying upon two cases: R v. Kwong So (MA 12/85, unreported), R v Lo Wai Hon (MA 985/85, unreported) and he might have added R v Chong Ming Chin (Crim App 294/84, unreported). In those cases, convictions of managing a vice establishment, on the basis of admissions of being the person in charge, were upheld on appeal. It is clear on the wording of the section, particularly the employment of words, 'or is otherwise', that for the purposes of the section, 'otherwise in charge or control' includes managers. The vice versa is not necessarily so, but generally it would be. Managing means exercising operational control. I might make a general observation here - a lot of sterile argument and unmeritorious tactical defences would be avoided, if in drafting legislation, one verb was used in the offence-creating section, and if it were thought necessary it could then be defined so to include other verbs, so that only one offence would be created. |
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On the evidence of his admission, the first appellant was a person in charge. That, in my view, is sufficient evidence itself to conclude that he was, on that occasion, the person exercising managerial or operational control powers, and therefore he was managing." |
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12. It is clear from the findings of fact that the magistrate was fully aware of all of the relevant considerations and that he was satisfied at the appropriate level that the appellant was indeed performing the duties of a manager of this Establishment and that it was a vice Establishment.
13. Although this was not specifically stated in the said findings it is implicit from a reading of the findings as a whole that this was the case.
14. This conviction was in no way unsafe or unsatisfactory and the appeal is dismissed.
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(Simon Mayo) |
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sitting as an additional High Court Judge |
Representation:
Mr David Leung for Crown Prosecutor
Adrian Bell (Messrs Anthony Hann and Co.) for Appellant
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