THE QUEEN v. LAI HON CHUNG AND OTHERS

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 827 OF 1990

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BETWEEN

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JUDGMENT

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1. The Appellants pleaded not guilty in the Magistrate's Court to individual charges alleging a breach of Section 13 of the Massage Establishments Ordinance.

2. The first Appellant was alleged to have committed a breach of sub-section 2, an offence which applies specifically to a licensee of such premises.

3. The other Appellants were charged with a breach of sub-section 1 which relates to people who assist in one form or another in the operation of a massage establishment.

4. The gravamen of the offences, as Mr. Spicer who appears for them all today, pointed out is the contravention of a provision of the licence in respect of the particular establishment, the subject of the charges in this case. The provision alleged to have been contravened reads as follows: -

"The licensee shall ensure that no massage or other treatment shall be given except between the hours of 1100-2359."

5. The particulars in each case alleged that that provision was contravened on the 23th day of March 1990.

6. The prosecution evidence briefly was that a party of police officers went to the premises arriving there at about 1.35 a.m. There was some form of activity going on inside the premises. The main boor was closed out there was an aperture through which limited entry to the premises could be gained on its being opened by a person apparently on duty there. On the arrival of the police officers and their disclosure that they were police officers, that person left his post, and the police party was unable to gain immediate entry. When they did gain entry they found eight men, dressed only in shorts, and five ladies, whom the prosecution witnesses described as masseurs, all endeavouring to escape by the rear door. One of the men so found was called by the prosecution to give evidence. The effect of his evidence was that he had gone to the premises, had received massage service and had paid for it. He said that he had gone to the premises at about 11 p.m. on 22nd March, that is earlier that same night. He gave particulars of how he prepared for the massage but the times that he estimated for the preparatory activity, if accepted literally, would have led to a finding that his massage had begun well before the proper authorized closing time. However, he also said in his evidence that his massage had finished about 10 minutes before the police gained entry to the premises. None of the Defendants gave evidence and none of them called any witness to give evidence on his behalf.

7. The learned magistrate found the allegation proved and convicted each of the Appellants. In their appeal against conviction, although they filed some six grounds of appeal drafted by their counsel Mr. Spicer. it is, I think, a fair summary of those grounds to say that they come down to two major complaints.

8. The first complaint in respect of which a number of particulars have been given is that the evidence does not support the allegation of the charge, namely, that the condition of the licence was breached by the singular activity of giving massage services outside the permitted hours.

9. Mr. Spicer made the point that the condition in the licence mentioned massage services and other activities and pointed out this had also been the phrase used by the learned Magistrate when discussing the condition, whereas the charges allege that the contravention was the giving of massage services solely.

10. So far as that observation is concerned, I do not think it is a matter of any substance because if the Magistrate was satisfied that other services for treatment were being given then he simply found that the prosecution had proved more than they needed to prove in order to support the allegation in the charge. The real explanation I think for the use of the term is that during the hearing itself, the Appellants' then legal representative used that particular expression when addressing the Magistrate and I think that it is a phrase which was picked up from him by the Magistrate. But the real thrust in respect of this ground is that the evidence does not support the allegation in the charge. It is pointed out that there is no direct evidence and that the Magistrate relied in the main on circumstantial evidence. It is true that the learned Magistrate did rely mainly on circumstantial evidence but there was direct evidence that a massage service was supplied outside the permitted hours which came from the witness who said that he had been the recipient of massage service about 10 minutes before the police arrived.

11. The learned Magistrate in referring to this witness' evidence said that he was vague about times and a reading of his evidence would confirm that view. But the learned Magistrate makes the point that in saying that his massage was received about 10 minutes before the police arrived, taken with the fact that he was still on the premises in shorts when the police arrived tended to confirm his evidence in that regard. The Magistrate came to the conclusion that however wrong the witness may have been about the exact time that he received the massage, it must certainly have been later than 11.59 p.m. on 22nd March. The learned Magistrate was entitled to so find. That evidence of the customer taken in conjunction with the other evidence of what happened when the police arrival supports no other reasonable inference than that massage activity, as described by the witness, was going on in the premises outside the permitted hours.

12. I therefore find no substance in this general ground of appeal, notwithstanding the quite elaborate particulars which were supplied in support of it.

13. Them were two grounds which in effect alleged that the Magistrate adopted two wrong approach as regards the burden of proof. I find no substance in this ground because a proper reading of the Magistrate's statement of findings shows that he analysed the evidence for the purpose of determining whether it did establish beyond reasonable doubt that the licence had been contravened in the way alleged in the charge.

14. The result is that I have come the conclusion that there is no substance in this appeal in respect of any of the Appellants. The appeal of each must be and is dismissed.