KWONG SO AND OTHERS v. THE QUEEN

Criminal Law - Keeping a vice establishment - evidence of two indecent incidents at same premises or one occasion - whether isolated act or evidence of persistent user - whether evidence sufficient to establish keeping is a question of fact not of law - Knowledge of manager and others assisting in management - Held: Evidence obtained on the particular single occasion established keeping - Section 1.79(b) Crimes Ordinance, Cap. 200.

IN THE SUPREME COURT OF HONG KONG

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JUDGMENT

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1. What constitutes keeping a vice establishment for the purposes of Section 139 of the Crimes Ordinance, Cap.200?

2. That question has arisen in the present appeals in which the first named appellant appeals from a conviction of managing a vice establishment contrary to Section 139(b) of the Crimes Ordinance and the other 3 appellants appeal against convictions of assisting in the management of a vice establishment contrary to Section 139(b) of the Crimes Ordinance. The first named appellant was fined $2000 and the remaining appellants $1250 each. There are no appeals against sentence.

3. The appellants all pleaded not guilty. The appellants were all represented and admitted certain facts and exhibits. In addition P.C.21698 who took photographs and drew a sketch plan was called by the prosecution giving oral evidence and producing photographs and a sketch plan. The second named appellant CHEUK Wo-sin gave evidence; the other appellants remained silent.

4. The admitted facts were that two other police constables, acting on instructions, entered the Ginza Capital Nightclub, '74-84 Sai Yeung Choi Street, 7th Floor, Kowloon, at 5.40 p.m. and 5.45 p.m. respectively on 13th September, 1984. On entering they were approached by the appellant CHOW Pui-wing who at different times led them to separate tables. Each was asked whether they wanted any particular hostess and after answering in the negative a hostess later approached each police constable and sat at their tables. Both hostesses took the initiative in indulging in indecent acts with the constables. Other admitted facts were that the police constables separately left the premises at 6.52 p.m.and 6.54 p.m. after paying bills of $82 and $88, presented to them by the appellants POON Tse-chiu and CHOW Pui-wing respectively.

5. At 7 p.m. a police party arrived and the first named appellant, KWONG So, admitted that he was the person in charge of the nightclub. It was also additted that the second named appellant CHEUK Wo-sin was employed at the nightclub. Shortly after 7 p.m. all of the appellants were arrested while still in the nightclub.

6. At the hearing before the learned Magistrate, Counsel who then appeared for the appellants first submitted that the prosecution had only established one isolated occasion on which indecent acts occurred. In the absence of evidence of the keeping of a vice establishment other than or 13th September 1984, Counsel submitted in the court below, that the other evidence had to be sufficiently compelling that an inference of habitual usage could reasonably be drawn. Secondly, it was submitted to the learned Magistrate, that a reasonable doubt existed whether the appellants knew that indecent acts occurred on 13th September, 1984. The single appellant who gave evidence did not admit to knowledge.

7. The learned Magistrate, in a reasoned Statement of Finding, carefully considered these submissions and the authorities cited to him on the issue of keeping. Among the findings the learned Magistrate made, were that the physical layout of the nightclub and the system of operation raised the inference that the premises were wholly or mainly used for purposes of vice.

8. In considerable detail, the Statement of Findings refer to the fact that seating area was in darkness; the facilities for the placing of refreshments was limited; the dance: floor was not used; the method of advertising; the common actions of the ushers, the two hostesses and the cashier in respect of the separate visits by the two police constables. The learned Magistrate inferred that the indecent acts, admitted to have been committed, were committed with the knowledge and acquiesence of those responsible for the management of the nightclub. The charges were found to have been established beyond reasonable doubt.

9. On appeal the appellants advanced similar grounds to those already put to the learned magistrate. The first ground of appeal was that there was insufficient evidence, for the purposes of Section 139, that the indecent acts on 13th September 1984 were instances of a general and continuing course of conduct by employees of the nightclub.

10. The provisions of Section 139 were considered by the Court of Appeal in WONG Chi-hung v. The Queen (1982) H.K.L.R. 361.The Court of Appeal considered the effect of the opening words of the Section referring in the singular to only "on any occasion" compared with the subsequent keeping element invoked by the use of the words "keeps" in Section 139(a) and "kept" in Section 139(b). The Court of Appeal accepted the common law principle that keeping, as a matter of law, involves continuity but in an exhaustive examination of Section 139 considered that any apparent conflict within the Section was easily resolved for there was really nothing self-contradictory in the wording of the Section. The Court held that under Section 139 it had to be proven that the user of the premises was persistent but it was sufficient if a person charged, in relation to such user, was only proven to have participated on one single occasion. The Court of Appeal's conclusion was summed up by McMullin, V.-P., at page 368, in these words:

"To put the matter more succintly, persistent user must be shown of the peemises but need not be shown in relation to the conduct of the individual charged."

11. So to satisfy the legal requirement of keeping - whether described in the legislation as "keeps" or "kept" - there must, as a matter of law, be evidence of a use which, in the authorities, is variously described as "persistent", 'habitual" or "continuing".

12. Whether in any particular case the evidence adduced establishes keeping is a question of fact. There were a number of cases cited to me which referred to facts which may establish keeping. However, none of those cases enunciates any principle of law as to what-facts establish keeping. In an appellate atmosphere it is easy but erroneous to elevate statements of fact into principles of law. Where a Court has made observations on facts, which may assist in establishing keeping, they are invariably helpful but they remain factual comments on factual matters.

13. The appellants strongly urged that one solitary visit to premises of the kind established by the evidence before the learned magistrate could not establish keeping. This raises two issues. First, whether a solitary visit may establish keeping. Secondly, whether the evidence did establish keeping.

14. Obviously, keeping may be more readily established evidentially, if premises are kept under- surveillance over a period and entered several times on different days. However, the law is well settled that keeping may be established by the evidence provided by a single visit if the evidence then obtained is consistent with no other reasonable conclusion but that the premises are kept as a vice establishment.

15. The latter statement is supported by WONG Chi-hung v. The Queen (supra) where the Court of Appeal observed, at page 365, that keeping "... might also, in a given case, be established by proof of what has been observed upon a single occasion ..." Another example of the same principle is R. v. Harrison (1887) 8 DJ-S.W.R. 57 where the evidence of one incident on one day was held to be sufficient to establish habitual use of premises as a brothel.

16. Earlier authorities such as Martin v. Benjamin (1907) 1 K.B. 64 which, if narrowly construed, suggest that evidence of use on more than one occasion must be established, should now be considered in the light of latter decisions. However, in my view the earlier authorities are not in conflict with more recent authority. The earlier authorities accord with current law, in holding that keeping requires an habitual use and not merely use on one occasion. More recent authorities uphold that view of the law and further observe that evidence provided by but one visit, may provide evidence of habitual use to-satisfy the keeping requirement.

17. Counsel for the appellant also referred me to The Queen v. KWOK Ka-1eung Criminal Appeal Noa198 of 1983. However, that appeal was concerned with the point of law whether a charge under Section 139(b) which omits in the particulars any reference to the statutory word "kept' was defective. Barnes J., held that the omission resulted in a failure to allege any offence known to law and quashed the convictions. Apart from observing that the "kept" element was a vital element in alleging an offence under Section 139(b), the learned judge neither had before him the issue which has arisen in this appeal nor did he make any comments upon that issue.

18. In accordance with authority I therefore hold as a matter of law that a solitary visit to premises may provide evidence to establish keeping for the purposes of Section 139(b). On the other hand whether the evidence does so is wholly a question of fact. This position was recognised by Lord Parker L.C.J. in Dudley v. Holland (1963) 3 All E.R. 732, 734 where, as to whether keeping was established, he stated:

"It is no doubt a matter of degree and fact in every case."

19. That the judicial determination of whether, on the evidence, keeping has been established is a question of fact and not of law, was recently emphasised by-Fuad J,A ,sitting as an additional Judge of the High Court in The Queen v. CHONG Ming-chin Criminal Appeal No.294 of 1984 where he declared:-

"I, of course, recognise the force of these authorities but it seems to me that it is essential to bear in mind, as Lord Parker indicated in Dudley v. Holland, that it will be a question of fact in each case, when addressing the issue, whether the element of continuity has been sufficiently established. In my judgment it is dangerous to attempt to lay down a formula that will govern each case from the words used in widely differing cases by individual judges. 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 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."

20. Counsel for the appellant properly recognised that in some circumstances evidence obtained from a single visit might be sufficient. However, in approaching the issue of whether there was such evidence in this case, he pointed out that the premises had for many years held a liquor licence and were lawfully conducted as a nightclub, He emphasised that while no one was using the dance floor, the visit by the two police constables was made very early in the evening. Further, even at that early time a pianist was present playing live music which was more consistent with the lawful conduct of a nightclub. In his submission the dark lighting and seating arrangements were also consistent with the typical layout and background effects of a lawful nightclub business.

21. It was also pointed out that no documents, registers, or books of account were seized which supported the allegation that the business constituted a vice establishment. I recognise that the availability of such documentary evidence was referred to by the Court of appeal in WONG Chi-hung v. The Queen (supra). However, I am satisfied the Court of Appeal only referred to such documents as useful indicia, to support a charge, where the evidence was based on only one visit. Again these were merely observations on the facts and were not a formulation of any principle of law.

22. Turning to the evidence adduced, while it was limited to what occurred on 13th September 9984, it extended to two separate incidents on that day. Each of the two police constables entered separately and individually received basically the same reception and services. Their individual experiences, together with the layout and lighting of the premises, established sufficient primary facts from which the learned magistrate was entitled to draw the inference that the indecent activities which took place occurred persistently.

23. The next ground of appeal was that there was no evidence or insufficient evidence that the appellants knew of the indecent activities. The evidence established orally or by admission that all the appellants occupied positions in the management of the nightclub. The first appellant was the manager. The other appellants assisted him in the management of the premises.

24. Whether they had knowledge of the indecent activities is again a matter of inference. The primary facts established the procedure followed at the nightclub. The two police constables who entered separately received similar individual treatment. They were each met by ushers; asked if they preferred any particular hostesses; were shown to their different tables and each supplied with a hostess. Later one of the hostesses checked with the cashier as to how long she might stay with one of the police constables. Before the police constables left their accounts were processed by the management. I accept that the accounts were for relatively small amounts. However, no refreshments or food were supplied to either police constable although I accept that they were available. Both police constables arrived early in the evening and stayed for relatively short periods.

25. Counsel for the appellant submitted that the dark lighting permitted the hostesses to indulge in indecent acts without the knowledge of the management. Further that the photographs were unreliable evidence as an accurate indication of lighting conditions. As to the latter point, there was ample other evidence, including the oral evidence of P.C.21698, on which the learned Magistrate could have arrived at his findings that the sitting area was dark and unlighted. As to the effect of that lighting on the knowledge of the appellants, I record that the lighting was under the control of the management. The appellants remaining inside the premises, would be more accustomed to the limited lighting, quite apart from their use of torches, than customers on first entering from outside.

26. However, even if the appellants were unable directly to observe the detailed indecent activities of the hostesses, the cumulative effect of the evidence as to the physical layout and actual system of management of the premises, provided ample evidence from which the learned magistrate could properly infer that the appellants knew that the indecent activities were taking place. On that evidence the learned magistrate found that the appellants possessed the necessary knowledge.

27. After having read the whole of the evidence and in the light of the specific matters to which I have already referred, I am well satisfied that the learned magistrate was entitled to draw the inferences that the 1st named appellant was managing premises which were being kept as a vice establishment and that the remaining appellants assisted in the management of that vice establishment. All the appeals are therefore dismissed.