HKSAR v. YU WAI SHUN WILSON

1997, NO. MA 751

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. The Appellant was convicted on 22^nd July 1997 of managing a vice establishment contrary to s.139(1)(b) of the Crimes Ordinance, Cap.200. The relevant part of s.139(1)(b) reads as follows :

"s.139(1) Any person who on any occasion -

(a) .........

(b) manages ...... any premises kept as a vice establishment shall be guilty of an offence ...."

2. The prosecution evidence is that two undercover police officers PW2 and PW3 posing as customers, went to the premises known as Kam Yuen Kok at 5/F, Nos. 7-9 Cheung Wong Road, Mongkok, Kowloon. The Appellant was there to greet them when they entered the premises. The Appellant took them to separate rooms and asked PW2 if he had a familiar girl and offered to introduce to him a girl for the price of $450, the girl would provide sexual service to him including making love. The Appellant also offered to introduce to PW3 a girl who would provide for the same price sex service including making love and a "blow job".

3. The officers accepted the offers and subsequently the Appellant took two girls into the respective rooms of the two officers where the girls performed lewd acts with them. When the Appellant was arrested, he said under caution that he was working there. Photographs of the premises show signboards of "Kam Yuen Kok Japanese Massage" and the place was divided into separate rooms. Other exhibits included a number of condoms seized from the premises.

4. The Appellant did not give evidence.

5. On the evidence of the prosecution witnesses which he accepted, the magistrate found the premises were being kept as a vice establishment and the Appellant was managing the vice establishment.

6. The Appellant appeals mainly on the ground that on the evidence it was insufficient for the magistrate to draw the irresistible inference that the premises were being kept as a vice establishment because :

(i) the magistrate did not consider if the Appellant did not know the business of the premises; and

(ii) the magistrate did not consider the weakness in the prosecution case in that both officers admitted in their evidence, in essence, that prior to their visit they had no knowledge of the nature of the business on the premises and how the premises was managed.

7. It would appear that the main complaint of the Appellant is that the evidence of visit by the officers on one occasion only is insufficient to establish that the Appellant knew that the premises were a vice establishment and that he was managing it.

8. The magistrate in his findings said this :

"I was satisfied so that I was sure that the Appellant was managing the premises. I took into account the evidence that he was the person who dealt with both the undercover police officers upon their arrival at the premises. That he negotiated a price with them and took them to their respective rooms where he offered to provide them with girls for the purpose of sexual services. Because of the conversation that he had with the two undercover police officers, I was sure that the Appellant knew that the premises concerned was being kept as a vice establishment.

The element of the premises being used 'wholly or mainly' as a vice establishment can be established by evidence of only one visit. In this case the police officers entered the premises together, they were each told separately by the Appellant that sexual services were available. Sexual services were subsequently provided as promised. This was an offer came from the Appellant, no request for such a service come from either of the two police officers."

9. The magistrate referred to a number of authorities. Suffice for me to say that it has been clearly established that proof of habitual user is not necessary. (Wong Chi Hung [1982] HKLR 361) and that the evidence of one visit could still be sufficient to show that the premises were kept as a vice establishment if there were other circumstances justifying that inference to be drawn. In this regard, Fuad JA in Chong Ming Chin v R (Crim. App. 294/84 C.A.) had this to say :

".... An event which takes place once, or a number of similar events which take place on a single night may indeed be insufficient to establish that the premises were being kept as a vice establishment, but as common sense would dictate, it cannot be right to say that evidence of the surrounding circumstances in a given case can never lead to a proper inference that the events observed were not merely isolated incidents but indicated that the premises were in fact being kept as a vice establishment with some degree of continuity."

10. The magistrate had considered all the circumstances of the case including the knowledge of the Appellant and there was ample evidence for the magistrate to conclude that the Appellant was managing premises being kept as a vice establishment. The appeal must be dismissed.