R. v. LAM SO CHUN

M.A. No.600 of 1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO.600 OF 1996

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J U D G M E N T

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1. On the 19th April 1996 the Appellant was convicted of an offence under Section 144(1)(a) of the Crimes Ordinance (Cap.200), namely:

" (   being an occupier of [identified premises] .... permitted or suffered the whole or part of the said premises to be kept as a vice-establishment."

2. There was no dispute that the appellant was the occupier of the premises at the material time. Permitting or suffering (i.e. allowing) whole or part of the premises to be kept connotes the element of knowledge. "Kept" means "used" more probably for more than one occasion but authority, and a proper construction of the term suggest that, in certain circumstances, evidence in relation to what was found on a specific occasion, may be sufficient to found the "keeping" or "kept" element of the offence. The appellant does not seek to argue against this proposition.

3. Section 117(3) of the Ordinance defines vice establishment as premises or any place

"[which] are or is used wholly or mainly by 2 or more persons for the purposes of prostitution; or ...... for or in connection with the organising or arranging of prostitution."

The basis of the charge against this appellant is the former "used wholly or mainly by two or more persons for the purposes of prostitution."

4. Mr. Macrae on behalf of the Appellant and Mr. Saw for the Respondent have directed my attention to a number of authorities. To those I have added firstly the Court of Appeal decision inAtt. Gen. v. Tang Ping Wing H.K.L.R. 1982 p.1. That case considered in particular Section 117(3) in the context of an alleged offence under Section 139(i)(b) of the Crime Ordinance. The subsection concerned was that relating to "the organising or arranging of prostitution." The circumstances indicated two visits to the relevant premises or place after two observations on two other days. Li, J.A., giving the judgment of the Court, opined that "if for any period of time a set of premises is used for the purposes of prostitution ...... such set of premises at that particular period of time must be regarded as a vice establishment."

5. I turn now to the decision of the Court of Appeal (two of the three members were those in the foregoing decision) in Wong Chi-Hung and others v. the Queen H.K.L.R. 1982 p.361. Although primarily concerned with an offence and conviction under Section 139(i)(b) of the Crimes Ordinance which uses the words "on any occasion" in the opening words of the Section, it went on to consider the element in "keeping any premises as a vice establishment"    it requires "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."

6. McMullin J.A. referred to the decision in Tam Kim-Leung & Ors. Crim. App.1081/81 where in relation to the "keeping" charge under Section 139, Roberts C.J. said:

"There can be no doubt that the premises were being operated as a vice-establishment. .... "Keeping" means maintaining the premises."

7. McMullin J.A. said:

"The first of those elements, no doubt, will actually 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, book 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."

Later (at p.368 D - E) he said:

"The offence is one of a continuing nature. It does require the showing of something in the nature of persistent or habitual user of premises for any of these forbidden purposes falling within the language of paragraphs (a) or (b) of subsection 3 of Section 117. If that is not established, the charge fails. ........ To put the matter more succinctly, persistent user must be shown of the premises but need not be shown in relation to the conduct of the individual charged."

The position is re-stated at page 369 at H to I:

"It is the element of repeated user of the premises which makes the offence of its nature a continuing one. This is implicit in the words "keeps" and "kept" read in conjunction with the minimal requirements prescribed in Section 117 for what must be shown to prove the premises a vice establishment viz: that the premises etc., were used wholly or mainly by two or more women for the purposes of prostitution; ......... Some degree of persistence in user must be shown before the character of the premises is established."

8. The Appellant referred to a number of authorities which I will review at this stage. The Queen v. Lau Wai-Kin Mag. App.787 of 1985. The case concerned an alleged offence contrary to S.139(i)(b) of the Ordinance and specifically with whether the premises were used "wholly or mainly" for the purposes of prostitution and "kept" as a vice establishment. The evidence clearly justified the former. Relevant parts of the judgment of McMullin V - P., in Wong Chi Hung which I have already quoted were relied upon. On the facts of Lau Wai Kin, the learned Deputy Judge found that there was not the evidence to support the necessary element of persistence of user to show a pattern of main user, at least. The principle he invoked, as enunciated by McMullin V-P, was clearly appropriate.

9. In The Queen v. Cheng Sung Hin Mag. App.498 of 1985, Bewley, J. also had to consider whether the premises in question were used "wholly or mainly" for prostitution in the context of an alleged offence under s.139(i)(a). He felt that there was an inconsistency in the dicta of Li, JA, but on the facts of his particular case had little difficulty in finding that the evidence did not support a finding that the premises were "wholly or mainly" used for the purposes of prostitution.

10. More recently Leong J. had to consider the law in relation to an alleged offence under S.139(i)(a) of the Ordinance in The Queen v. Li Kin Cheong Mag. App.334 of 1996. The learned Judge found that although the Magistrate had considered whether the premises were used "wholly or mainly" he had not considered whether they were "kept" as a vice establishment    viz. whether there was a pattern of such user. Accordingly he quashed the conviction.

11. The same situation had been considered by Keith, J. in The Queen v. Law Tin Ching Mag. App.368 of 1993 where he set out the basis of the decision of the Court of Appeal in Wong Chi-Hung, which I have cited earlier, this being approved by the Court of Appeal in The Queen v. Wan Kin -Sang (C.A. 180/92). Fuad, J.A in The Queen v. Chong Ming-Chim (C.A. 294/84) had said:

"An event which takes place once, or a number of similar events which take place on a single night may indeed be sufficient 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 same degree of continuity."

12. Keith, J. set out the two issues. Were the premises a vice establishment? If they were, were they being kept as such?

13. What was the evidence adduced in support of this contention?

14. In this appeal the prosecution relied upon the evidence from Police Officers of two visits to the premises.

15. The first was on the 25th February 1995. A Police Officer visited the premises and posed as a genuine customer and was welcomed by an employee of the establishment. The appellant was on the premises at the time and welcomed a second customer. There was no evidence as to how many customers altogether were on the premises, or how many employees. At some stage the appellant took part in some questioning of the undercover Police Officer about his occupation. Later the employee provided a sexual service in a large room which had a number of massage chairs in it. The service lasted two hours from 5 p.m. to 7 p.m. At the end he went up to a counter to pay - a total of $440 was charged. The Appellant was present at the time of payment. Shortly after he left Police officers raided the premises. The masseuse who attended to the undercover officer admitted what was alleged to have occurred in the presence of the appellant. That does not of course establish that the appellant knew what had taken place. The appellant was, it is alleged full of remorse and a caution notice was served. There is no satisfactory evidence that she admitted an offence although the Police Officer serving the notice said the appellant "expressed she was aware (of what was happening)"; on cross-examination the evidence narrowed down to - "she didn't argue at all when masseuse said she did it. She nodded her head she understood." The appellant signed the notice but there was no other record of the alleged conversation.

16. The second visit which supported the prosecution case was on the 9th October 1995, over 7 months later. A different Police Officer arrived at the premises at about 1.50 p.m. and was met by the Appellant. After being taken to a massage chair the officer asked for Ah Ma. Apparently he had visited the premises on the previous week and Ah Ma had given him a massage service and he had made an appointment with her for this date. The appellant left and Ah Ma arrived. Massage was given and at some stage the Appellant returned. The alleged conversation between the Appellant and the under-cover police officer is crucial to this case.

17. According to the officer the Appellant said "The one behind me is a stranger customer, I don't know if he is a Police Officer. If so, licensee has to go to prison." She then invited him to come back after 5 p.m. after office hours when she would provide a free masturbation service. In the overall context this can be the only meaning of "release fire for you."

18. It is argued that the only conclusion to be drawn from the Appellant's conversation was that the Appellant was prepared for a masturbation service to be provided on the premises, and that if it turned out that the customer was a police officer, she would be found out and would go to prison. Accordingly she was prepared to give such a service free and out of working hours.

19. After the appellant left the room Ah Ma said words to the effect: "This one looks like an officer and the other one also looks like an officer. Better not to do it ..... it's not that, I do not want to do it for you - she doesn't allow me to do it."

20. Ah Ma later, after all other customers had gone, returned to give the masturbation service. The officer paid her (the Appellant was absent) with a marked note and he left. Other officers then raided the premises as planned and the appellant returned at about 5.15 p.m.

21. A second police officer had entered the premises undercover, being met by the appellant as she was on her way out of the premises. She told him that Anne, a masseuse, was upstairs, and that he was to go up. He did. It transpired that he had been to the premises on three previous occasions, so the mention of Anne was no surprise as this officer was clearly known as a 'customer' by reason of these previous occasions. He later received a sexual service from another masseuse. The appellant was not on the premises at the time.

22. This officer's previous visits obviously took on a particular significance. On none of those visits had he been offered a sexual service. But his visits were not the only visits by undercover officers to the premises between the 25th February and 9th October. Quite properly the Defence sought details of these visits. Quite wrongly the prosecution refused to disclose these details. The Learned Magistrate ordered that the prosecution disclose the file dealing with these other visits. It emerged that nine visits had been made involving five undercover officers between the dates referred to ...

23. I view the prosecution withholding of this evidence and its attitude to the Defence request to see it with great concern. That evidence was undoubtedly important to the Defence. It showed that on those occasions there was no evidence to support the allegation of keeping a vice establishment.

24. Whilst prosecutions are to be conducted thoroughly and firmly, they must also be conducted fairly. I have no hesitation in saying that it was unfair for the prosecution to withhold such information. Mr. Daryl Saw, who did not appear in the court below, has not sought to argue against that, rightly in my view. The prosecution is under an obligation to disclose to the defence information which may be relevant to their defence and particularly so when such evidence goes to a fundamental issue in the case. It is also misleading the court to withhold such information because it distorts the picture presented. It may well be that the counsel who prosecuted was young and inexperienced. I would certainly not have expected it of an experienced counsel well-tutored in the duties and obligations of the prosecutor.

25. The Defence case was quite short. The Appellant says that she knew of no sexual services being offered or provided; that she would not tolerate such behaviour and had, after the first incident, dismissed the masseuse concerned. She had also placed a warning notice in the premises. None of her evidence as to these steps was challenged. She denied the terms of the conversations alleged on the second occasion.

26. The Learned Magistrate was satisfied that both officers (those who gave primary evidence of what occurred on the 25th February and 9th October) were truthful, careful and not given to exaggeration. It followed that he did not accept the appellant's evidence. That is a finding with which I cannot and should not seek to interfere. The Learned Magistrate was without doubt in the best position to make that judgment.

27. Having found those primary facts he had to go on to consider the matters succinctly expressed by Keith, J. following the authorities which he and I have reviewed.

28. The Learned Magistrate expressed himself as follows:

" ........ Having considered all the evidence and Counsel's submissions I found myself satisfied beyond all reasonable doubts that on both the 25th of February and 9th October the Appellant had been initially concerned to establish that vice services were not offered [to the two Police Officers concerned] but only out of concern that either might be undercover police officers. Further on [the] ....evidence [of the Officer 52138] I had no doubt that on the 9th October the premises had been kept by the appellant as a vice establishment in the sense that she condoned such activity, where she felt satisfied that would-be recipients were not in fact police agents."

29. He accordingly found the case proved. It is important to note that the evidence of the Police Officer on the first occasion was

"The Defendant also came to ask me what kind of occupation I had and why I went up there."

I do not consider that evidence justifies the Learned Magistrate finding, in relation to the 25th February that she "had been initially concerned to establish that vice services were not offered [to the Police Officer] but only out of concern that [he] might be [an] undercover police officer". In relation to the second incident of conversation his finding is - on the face of it - unimpeachable but he had undoubtedly been influenced in that conclusion by his erroneous interpretation of the evidence relating to the first occasion. He had to apply his judgment to whether the premises were a vice establishment. He could not do this without considering with some care the evidence which had been withheld by the prosecution until a comparatively late stage in the trial. Although he knew of the number of these other occasions and the fact that some of the Police Officers who gave evidence before him had been involved in some of those visits, he did not know the dates, the circumstances, the time or the events - all he knew was that on none of those nine occasions on unknown dates over a period of seven months was there any evidence of the premises being a vice establishment. He did not in fact make an unequivocal finding as his first step in the process.

30. He was of course handicapped not only by the conduct of the prosecution but also by the way the defence chose to deal with the information once revealed. There were many details which, had the prosecution revealed the information at the appropriate time, the Defence would have sought to underline in order to highlight their significance. In a busy court where the Magistrate is relying upon the prosecution to carry out its duty with total fairness, and upon the defence to elicit all material matters, it is not easy to set such evidence into its proper context. The parties are not entitled to sit back and expect the magistrate to do their job for them. Such an approach would make a nonsense of the adversarial system.

31. As a consequence I am satisfied that this evidence was not fully considered in the scheme of things. It was highly material and needed a prominent place. Had it had such consideration I am satisfied that the "necessary element of persistent or habitual user" would have been found wanting.

32. Even regarding the evidence of a single occasion (9th October 1995) those circumstances "were not such as to yield no other conclusion than that conduct of the forbidden kind was not only then going on but that the premises had been so used ..... for a considerable period prior to the police raid ......" The only circumstance of those itemised in McMullin V.P.'s statement of the matters which might be considered was the layout of the premises open plan with a number (unspecified) of massage beds.

33. I respectfully agree with Keith, J. where he stated in R. v. Law Ting Ching that "the evidence which satisfies a Magistrate that the premises were a vice establishment within the meaning of S.117(3) of the Ordinance will, ..... invariably amount to evidence which should satisfy a Magistrate that the premises were kept as a vice establishment."

34. In this case the Learned Magistrate could not have been satisfied on either score without a full consideration of the evidence to which I have referred. I have concluded that had he so considered it he could not have been so satisfied. The appeal therefore succeeds.

35. I have considered whether this is a case in which I should order a re-trial before a different Magistrate. I can anticipate an argument from the Defence that the prosecution should not be allowed a second bite at the cherry where their own conduct has led to, or at least contributed to the wrong decision. More importantly it is my view that had the prosecution been open and fair a conviction would not have resulted. Therefore I do not order a retrial.

36. The appellant is entitled to her costs of this appeal.