THE QUEEN v. CHAN SIU-HANG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 1139 of 1986

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BETWEEN

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JUDGMENT

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1. The Appellant pleaded not guilty in the Magistrate's Court to a charge of assisting in the management of a vice establishment contrary to section 139 of the Crimes Ordinance. The offence was alleged to have been committed at 389 Lockhart Road, 1st floor. During the course of the trial the learned magistrate amended those particulars by adding the words "Room 214". The effect of his amendment was that the Appellant was then charged with the offence of assisting in the management of a vice establishment at "Room 214". 389 Lockhart Road, 1st floor.

2. The prosecution case established that police officers on at least two occasions had gone to room 214 where arrangements were made for them to receive the services of prostitutes. All the evidence before the learned magistrate was to the effect that the negotiations which the officers entered into with the Appellant took place in room 214 and it was for that reason that the magistrate amended the charge. He convicted the Appellant on that charge as amended.

3. The Appellant attacks the conviction on several grounds. The first ground is that the learned magistrate erred in law in amending the charge by adding the words "Room 214".  The submission in support of this ground is that there was no variance between the original allegation and the evidence which was led in support of it. I see no substance whatever in that submission. The charge originally alleged that the whole of first floor had been kept as a vice establishment whereas the evidence led in support of it was that only a part, namely, room 214, had been so used. That ground of appeal therefore fails.

4. The second ground of appeal was that there was no sufficient evidence that room 214 was used wholly or mainly for or in connection with the organizing or arranging of prostitution. The submission in support of this ground is that the arrangements were made away from room 214. The learned magistrate found that on the date alleged the Defendant met two police officers and took them to room 214 when they said they wanted to rent a room for the night. He then left them and returned and said that there were no girls who were willing to come to the room. In his statement of findings the learned magistrate explains how he came to the conclusion that the arrangements for prostitution were made at that room and I quote from his statement of findings:

"I also find as a fact that on 6th August, 1986 the Defendant did at first use room 214 for the purpose of organizing and arranging a prostitute for PW1 and PW2 by asking them to wait there while he paged for prostitutes to come. Subsequent to the failure to secure provision of prostitutes there the Defendant proceeded to solicit the prosecution witnesses inside room 214 to go to another place for prostitution. The Defendant gave particulars of the lewd services that could be provided by the prostitutes and negotiated the price of such services inside room 214 even though it was stipulated that the actual services would be provided elsewhere."

He went on to say:

"If we could call that a contract, the negotiation and agreement as to most of the fundamental terms were agreed inside room 214."

5. Those findings by the learned magistrate are amply supported by the evidence and his conclusion that the arrangements for prostitution were made in room 214 is not, in my view, challengable. I therefore find no substance in that submission.

6. The other ground of appeal is not relevant and was not proceeded with by Mr. Tsu, counsel for the Appellant, when I indicated that I was against him on his first ground. The result is that the appeal against conviction fails and is dismissed.