R. v. CHEONG LUEN SHING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.823 OF 1994

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J U D G M E N T

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1. The appellant was convicted by Mr Chung at North Kowloon Magistrates Court on one charge of managing a vice establishment, contrary to s.139(1)(b) of the Crimes Ordinance.

2. On the evening of 15th January this year PC 48774 and PC 50442, wearing plain clothes, presented themselves, 15 minutes apart, at the Ying Bun Villa, 137 Sai Yee Street, 2/F. They had been provided with $500 by their inspector and their instructions were to find out if prostitution was taking place at the villa.

1994, M.A. No. 823

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H E A D N O T E

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MANAGING A VICE ESTABLISHMENT - DEMEANOUR - "MANAGES" - "KEPT WHOLLY OR MAINLY FOR PROSTITUTION".

3. Each officer was greeted by the appellant and taken to a room. He was asked what kind of girl he would like. When he said he had no preference, the appellant suggested that a Thai girl would be satisfactory. The officers agreed, the appellant told them to pay when they had finished and left the room.

4. The officers spent the next 20 minutes watching pornographic films, which were playing on the video machines in their rooms. These machines were already switched on when they entered.

5. The appellant returned with a Thai girl and told each officer that the charge was $250. Sexual activity, falling short of intercourse, then took place until interrupted by the police raiding party knocking on the doors of the rooms. The officers revealed that they were undercover policemen and told the girls to get dressed.

6. Inspector Cheung Wai Kee and three other officers had meanwhile arrived at the villa. The inspector said there were two men in the sitting area. He revealed his identity and asked who was in charge. The appellant said " yes " : the other two men was later found to be a cleaner.

7. The premises were searched and five of the nine rooms were found to be occupied. Apart from the two undercover officers and the two Thai girls in their rooms, there was one prostitute and three men in the other three rooms that were occupied.

8. In the sitting area Inspector Cheung instructed PC 48774 to arrest and caution the appellant. In reply he said " Ah Sir, give me a chance, I work here just to earn some money" . The appellant made a further cautioned statement in the police station, which the magistrate found to have been made voluntarily but taken in breach of the Rules and Directions. In the exercise of his discretion he excluded it on the grounds of unfairness.

9. The appellant did not give evidence or call witnesses.

10. The magistrate found the inspector and the two police constables to be honest and truthful witnesses. He acknowledged the discrepancies in the evidence of the police constables but did not consider these to be material. He was satisfied that the appellant was the person in charge of the villa at the time and was consequently the manager. He cited the authorities and concluded that it was an irresistible inference that the villa was being kept as a vice establishment on 15th January.

11. Mr Groomsman Q.C., for the appellant, attacks these findings on four grounds.

Credibility

12. The magistrate said that, in coming to his conclusion, he "carefully considered the demeanour and the contents of the testimony of the three prosecution witnesses and the exhibits placed before me." Mr Grossman relies on Litton J.A.'s dictum in R. v. Ng Wing Ming CA No. 280/94 : "The inherent probabilities in most cases would be the first point of reference for the trial judge in seeking to ascertain the truth. Demeanour could only be a point of last resort."

13. In that case the judge had relied heavily upon the demeanour of the prosecution witnesses and that of the defendant and had not apparently considered the probabilities of the matter. As O'Connor J. said in R. v. Lo Shu Chuen M.A. No.242/90, citing Yuill v. Yuill [1945]1 AER 183, "Before relying on demeanour it should be tested against all the evidence."

14. In this case the magistrate said he had considered all the evidence, as well as the demeanour of the witnesses. I do not think he can be criticised for that, particularly since the factual situation lacked any "inherent probabilities".

15. The discrepancies in the officers' evidence concerned relatively unimportant aspects of the case, which had occurred seven months previously, and I accept the magistrate's judgment that they did not affect the credibility of the officers.

'Manages'

16. Mr Grossman's submission is that the appellant would not be managing the villa, even though he was in charge of the premises, if his real function was of a subordinate nature such as a cleaner.

17. In R. v. Tam Wing-kwong [1988]2 HKLR 313 O'Connor J. held that managing means exercising operational control. Looking at the part the appellant played in procuring the girls for the officers, there was sufficient evidence here, in the absence of anything to the contrary, to justify the magistrate's finding.

`Wholly or mainly for prostitution'

18. Mr Grossman cited R. v. Cheng Sung Hin MA No.498/85, in which the conviction was quashed because it was not proved that the premises were used wholly or mainly for prostitution. In that case, however, there was an innocent letting of rooms contemporaneous with the arranging of prostitution. Here there was no evidence pointing in that direction and the evidence concerning the videos tends the other way, as does the appellant's immediate assumption that the two men were there looking for prostitutes.

19. The magistrate also relied on the layout of the rooms. Inspector Cheung considered that the layout of the rooms was neutral, in the sense that similar premises are used as places of assignation, rather than brothels.

20. Nevertheless I am satisfied that there was evidence upon which the magistrate could properly find that the premises were being used on that day wholly or mainly for the purposes of prostitution.

`Kept as a vice establishment'

21. The question remains whether the villa was being kept for that purpose. In this connexion the magistrate said:

"It is fanciful to suggest, basing on the evidence, that even if prostitution activities did occur as described by PWs 2 & 3, they were one off incidents and the Villa was not habitually used as such.''

He was aware of McMullin V.P.'s dictum in R. v. Wong Chi Hung [1982] HKLR 361, in which he said at 365 that what is required to prove that premises were kept as a vice establishment is:

"...'evidence sufficient to show a pattern of main user which will usually involve some degree of persistence in time beyond what would be supplied by evidence of a single transaction'

He went on to add;

'[That] will usually be proved by evidence which results from surveillance of the premises over a relatively protracted period. But it might also, in a given case, be established by proof of what has been observed upon a single occasion where the circumstances are such as to yield no other conclusion than that conduct of the forbidden kind was not only then going on but (from the layout of the premises, documents, registers, books of account and the like) that the premises had been so used, whether by the accused or some other person, for a considerable period prior to the police raid or whatever intrusion had brought the evidence to light."

22. In R. v. Chong Ming Chin CA 294/84 Fuad J.A. (as he then was) said :

"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."

23. In R. v. Lam Wing Nin MA No.651/93 the magistrate did not address the issue whether the premises were kept as a vice establishment. In R. v. Lau Wei Kin MA No.787/85 the magistrate did not identify those parts of the evidence on which he relied for his finding that the premises were so kept. Both appeals were allowed and the convictions quashed on this ground.

24. Here the magistrate was well aware of the law and he relied on the same evidence to prove that the villa was kept as a vice establishment as he did to find that it was used wholly or mainly as such.

25. Mr Grossman submits that this is not enough in the light of the Court of Appeal decisions cited above. There were no registers or books of account. The layout was neutral. There was no prior surveillance. The evidence he says is identical with that in the other cases where the convictions were quashed.

26. That is not quite correct. Here there was the additional evidence of the pornographic video films. That seems to me to indicate some degree of continuity. A further difference in this case is that the magistrate was well aware that such continuity had to be proved. Unlike in the cases cited, he specifically directed his mind to the issue. I am satisfied that there was sufficient evidence to support his finding.

27. For these reasons this appeal is dismissed.