R. v. WAN KIU SANG and Another

IN THE COURT OF APPEAL

No. 180 of 1992
(Criminal)

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, J.A.:

1. The applicants and two other defendants were tried before His Honour Judge Whaley in the District Court on a charge sheet containing 16 charges relating to vice offences against the Crimes Ordinance. The 1st applicant was convicted of one offence of keeping a vice establishment, two offences of living on the earnings of prostitution and two offences of attempting to procure a girl under the age of 21 to have unlawful sexual intercourse. He now applies for leave to appeal against his conviction for keeping a vice establishment.

2. The 2nd applicant was convicted of one offence of keeping a vice establishment and one offence of attempting to procure a girl under the age of 21 to have unlawful sexual intercourse. He also applies for leave to appeal against his conviction for keeping a vice establishment.

3. The evidence against the 1st applicant was that on 5 May 1991 a police officer, PW3, dialled a telephone number that appeared in advertisements in various sex magazines which stated that girls could be provided for sex by telephoning a man called Andy on that number.

4. PW3 asked the man who answered his call whether girls were available that day. He was told that they were, that he should rent a room first and then call back. PW3 gave his surname as Man and said that he and a friend would rent a room later.

5. After reporting these developments to his senior officer PW3 went with another officer, PW1, to the Hang Fa Hotel at 379 Jaffe Road, Wan Chai. Each officer took with him three $500 notes, the numbers of which had been recorded. At the hotel PW3 rented room 17 and PW1 rented room 16. Having entered his room, PW3 again telephoned Andy by using the same number that he had dialled previously. He told him that he was surnamed Man, that he and his friend had rented rooms 17 and 16 respectively in the Hang Fa Hotel and asked him to provide girls to serve them. Andy told PW3 to hang up and that he would call him later.

6. Several minutes later Andy telephoned PW3 and told him that there was no problem, that the girls would arrive in about 15 to 20 minutes and that the charge would be $1000 for each girl.

7. Shortly afterwards, a girl who appeared to be aged about 16 or 17, and whom the officer later came to know was Cheung Yee-man, knocked at the door of PW3's room and asked if he was Mr. Man. On being told by PW3 that he was, she entered the room and immediately took off her coat and requested that she be paid $1000.

8. In an attempt to play for time so as to ensure that the raiding party was in place, PW3 told her that she was too slim. She replied that he should call Andy and ask for a change of girl. She then left. PW3 immediately called Andy on the same telephone number as before and told him that he wanted another girl. Andy replied that there was no problem and that another girl would arrive soon.

9. About 10 minutes later a woman, who appeared to be about 25 or 26 years of age and whose name PW3 later came to know was Li Wai-sum, knocked at his door at the Hang Fa Hotel and asked if he was Mr. Man. On being told that he was, she entered the room, started to undress and asked PW3 to pay her $1000 first. He handed her two of the three $500 notes he had brought with him. Soon after she had placed these in her handbag there was a knock on the door accompanied by a shout, "Police Room Check". Miss Li, who at this stage had taken off her blouse and skirt, immediately began to put them back on. PW3 opened the door and admitted a woman police officer. After PW3 had revealed his identity to Miss Li, the woman police officer searched her handbag and extracted an identity card in the name Li Wai-sum and the two $500 notes whose numbers matched those supplied to PW3 for the purpose of the operation.

10. In the meantime PW1, who was in room 16 of the hotel, answered his door in response to a knock from a girl who asked him if he had requested a girl. She then identified herself as 'Jo Jo', entered the room and asked PW1 to take a bath. After he had done so, 'Jo Jo', whom PW1 later found to be named Chan Mun-yee, also took a bath. She then entered the bedroom and began kissing PW1 "all over his body". After a while PW1 told her that he was feeling unwell and did not wish to continue. She replied that he was nevertheless obliged to pay, and that the charge was $1000. PW1 handed her two of the $500 notes he had brought with him. He then revealed his identity and both he and the girl, Miss Chan, left the room.

11. On reaching the street, a woman police officer and a sergeant searched Miss Chan's handbag and found an identity card in the name of Chan Mun-yee and two of the $500 notes whose numbers had been recorded prior to the commencement of the operation. Miss Chan was taken to the first applicant's flat during the course of a raid that was being conducted on it.

12. Miss Chan, who was PW2 at the trial, testified that she worked as a prostitute and that one "Ah Mak", who was not the 1st applicant, asked her to go to room 16 of the hotel to serve a customer. She confirmed PW1's testimony as to what had happened after she arrived at room 16.

13. Another police officer, PW13, who had maintained surveillance over the 1st applicant's flat at 402 Jaffe Road Wanchai throughout the period of the operation to the time of the raid, testified that, other than the girl, Cheung Yee-man, nobody had either entered or left the 1st applicant's flat during the surveillance period.

14. On a consideration of all the evidence the judge found that Cheung Yee-man had gone direct from room 17 of the hotel to the 1st applicant's flat after she had been rejected by PW1 as being too slim, and that she had remained there until the police raid, at which time she was found lying on an unmade bed watching television. The 1st applicant was the only other person present.

15. A search of the flat revealed four telephones including the mobile phone whose number PW3 had dialled when contacting "Andy". Numerous notebooks and a diary, all of which the 1st applicant admitted belonged to him and which contained numerous telephone numbers and amounts, were found on a table. The diary recorded, inter alia, total sums and also individual sums which, when added, came to those totals in respect of each day from 2 April to 4 May, the latter date being the day before the raid. There was also a list of numerous hotels and telephone numbers.

16. On searching Cheung Yee-man's handbag the police found a list of girls names with dates and amounts, and seven slips of paper on one of which appeared the handwritten words "Hang Fa Hotel 17 Man $1000". The other six slips bore similar notations referring to what were plainly locations, room numbers, names and amounts. Miss Cheung's passport and bank passbook were found in a bag belonging to the 1st applicant.

17. Having been told by a police officer that he had reason to believe that he, the 1st applicant, was operating a vice establishment at that address, the applicant replied, under caution, that if a client telephoned looking for a girl he would arrange one for him. He added that he worked for other people and that although he did not want to do that sort of work he did it because he had a mother in her seventies who was suffering from heart trouble. He admitted that clients looking for a girl would contact him on a portable telephone by dialling the number used by PW3, that the portable telephone was registered in the name of the 2nd applicant, that on receiving a call from a client he would arrange for a girl to be provided, and that this was done by contacting the 2nd applicant. He also admitted that "the clients are whoremongers and the girls are wanted to provide sexual services", that usually there were three or four clients each day, each of whom normally paid $1000, out of which he, the 1st applicant, received $300. There can be no doubt that by 'whoremongers' the applicant was referring to clients requiring girls for sexual services and not those who produced the girls. Indeed, it was not suggested that it was otherwise.

18. The evidence relating to the 2nd applicant was that a police officer, PW4, made a call to a telephone number which appeared in a magazine advertisement relating to the introduction of girls. When asked by the male who answered the call as to what type of girl he had in mind, PW4 replied that she should be young. The male then asked PW4 when he would like to have such a girl. PW4 replied that he was having dinner in Causeway Bay and wanted to have the girl sent to him after dinner. The male told PW4 to call again after he had rented a room and that the charge would be $700.

19. Following this conversation, PW4 took three $500 notes, whose numbers had been recorded, and rented room 19 at the Hang Fa Hotel. He then dialled the same telephone number. The male asked him whether he had finished dinner and rented a room. PW4 then told him that he had rented a room at the Hang Fa Hotel. In response to further enquiries from the male, PW4 told him that his surname was Fung and gave him his room number.

20. Shortly afterwards, PW4 received a call in his room from the male telling him that a girl would arrive in a very short time. PW4 then reported what had happened to his superior officer. A few moments later a girl aged between 15 and 18 years knocked at PW4's door and asked if he was Mr. Fung. After he had confirmed that he was, she entered the room, undressed herself, went into the bathroom and came out wrapped in a towel. She told him that he had to pay $700 first. He gave her two of the $500 notes he had brought for the purpose. She put these in her handbag and told him that she would give him the change later.

21. At the girl's suggestion PW4 took a bath, after which he came out and found her naked on the bed. She then manipulated him sexually, whereupon he revealed his identity as a police officer. A woman police officer arrived soon afterwards and it was found from the girl's identity card that she was named Lau Lai-sze.

22. In the meantime, a raid was conducted on a flat in the same block as that in which the Hang Fa Hotel was situated. The 2nd applicant and a girl, Ho Ka-man, were found there. There were two telephones, a mobile telephone and a portable telephone in the flat. The 2nd applicant admitted that the number of the mobile telephone was that which PW4 had dialled earlier. This was confirmed by using the portable telephone to ring the mobile telephone.

23. The judge found that all of the police officers concerned in the giving of the above testimony relating to both applicants were completely honest witnesses.

24. Mr. Grounds, who appeared for the applicants in this court but not in the court below, advanced several grounds of appeal in respect of the 1st applicant's conviction for keeping a vice establishment.

25. First, he contended that the judge erred in law or that there was a material irregularity in the course of the trial in that he wrongly admitted into evidence the seven slips of paper and the list found in Cheung Yee-man's handbag at the premises occupied by the 1st applicant. Mr. Grounds submitted that in the light of the decision of the House of Lords in R. v. Kearley (1992) 95 Cr.App. R88 these constituted inadmissible hearsay evidence, and that they would only have been admissible had Miss Cheung been called to give evidence concerning them.

26. In his Reasons for Verdict the judge stated that the slip of paper on which was written the words "Hang Fa Hotel 17 Man $1000" taken together with "all the other evidence including that of surveillance and importantly the 1st defendant's admissions, gives rise to the irresistible inference that it was the 1st defendant who answered the telephone and spoke to PW3".

27. The judge then referred to the other six slips of paper and to a list, which was also found in Miss Cheung's handbag, of girls names with amounts and, in some cases, dates placed next to them. He concluded that "all this evidence establishes beyond reasonable doubt that the 1st defendant was using the premises on 5th May to arrange girls for prostitution". In referring to "all this evidence" we have not the slightest doubt that the judge was referring to the totality of the evidence and not merely to the evidence of the slips and the list.

28. We accept, on the authority of Kearley, that the list and the seven slips of paper, having been found in Miss Cheung's handbag and not among the documents which the 1st applicant admitted belonged to him and which were seized from the table in the flat, constituted hearsay evidence and were inadmissible against him.

29. However, in view of the fact that PW3 had impressed the judge as a completely honest witness whose evidence he had no hesitation in accepting as truthful, we are entirely satisfied that the slip which bore the words "Hang Fa Hotel 17 Man $1,000" and which the judge stated had confirmed PW3's testimony concerning the making of the arrangements with "Andy", played an insignificant part in the finding of guilt on the keeping a vice establishment charge. The testimony of PW3, the admissions made by the 1st applicant, the surveillance evidence, the finding of four telephones in the flat, and the incriminatory nature of the numerous notebooks and diaries which the 1st applicant admitted belonged to him, presented a very strong case against him on that charge.

30. The second ground of appeal related to the issues of persistent user and whether the premises were used wholly or mainly for or in connection with the organising or arranging of prostitution. At the conclusion of his submissions, however, Mr. Grounds frankly conceded that he was unable to dispute that there was evidence that the premises were used wholly or mainly for that purpose at specific times.

31. In this connection we refer to R. v. Tang Ping-wing [1982] HKLR 1 in which Li J.A. in delivering the judgment of the court said at page 3:

"In his conclusion the learned magistrate appeared to have erred in his interpretation of the phrase "wholly or mainly". It is implicit in his finding that he required the prosecution to adduce evidence as to the nature of the user of the premises for all 24 hours in a day and to negative any other user than that of organising or arranging prostitution for the major portion of that period. Otherwise he would not have held that there was no case for the respondent to answer in view of his own finding of facts. In our opinion such an approach is wrong. If certain premises were used for organising or arranging prostitution during a portion of a day, say a few hours, or a number of days in a month it cannot be gainsaid that because for the greater portion of the day or month such premises were used for legitimate business and (sic) that during those few hours or number of days such premises were not used wholly or mainly as a "vice-establishment" within the meaning of section 117(3). This is so because, within that portion of the day or month, that set of premises was used "wholly or mainly" for organizing or arranging prostitution."

and at page 4 :

"In our opinion it is never the intention of our legislature to provide an implied defence for any person who uses a set of premises for the purposes of prostitution by arguing that for the greater portion of every day the same set of premises were used for legitimate business.

We are of the opinion that if for any period of time a set of premises is used for the purposes of prostitution or for arranging prostitution such set of premises at that particular period of time must be regarded as a vice establishment."

32. As to the issue of persistent user, Mr. Grounds submitted that the "judge wrongly concluded that because the [1st applicant] for a very limited period of one day from within Flat F. 9/F, 402 Jaffe Road, Wanchai, Hong Kong, arranged prostitutes to serve [PW1 and PW3], the said premises were a vice establishment and were kept as such by [the 1st applicant]". He contended that there was an absence of evidence, usually given in cases of this nature, of a protracted period of surveillance which showed that the premises were being operated as a vice establishment.

33. However, surveillance evidence is not the only means of proving that premises were being operated as a vice establishment. In Wong Chi-hung v. R. [1982] HKLR 361 McMullin V.-P. delivering the judgment of this court said at page 365 :

"As Mr. Plowman rightly perceives, there are two distinct elements in the offence. What the Crown must show in order to bring home a charge under section 139(a) or (b) is, firstly, that the premises were being kept in that manner and, secondly, that the defendant was in the position of keeper, (para. (a)), in relation thereto or, (para (b)), that he was seen to be managing, or assisting in managing or otherwise in charge or control of the premises. The first of those elements 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: the second need not.

This double aspect of the probanda under section 139 is reflected in the language used by Sir Denys Roberts, C.J. in Tam Kim-leung & Ors. Crim. App. 1081/81. unreported, where the several accused had been variously charged under paragraphs (a) and (b) of section 139. In relation to the keeping charge, he said :

'There can be no doubt that the premises were being operated as a vice establishment. In my view 'keeping' means maintaining the premises, knowing that they are being used as a vice establishment and having some measure of control over their use as such, though this control may be short of active management on a continuous basis.'

The first of those elements, no doubt, 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.

Once that has been proved the commission of the offence will be brought home to the individual charged by showing, in addition, that 'on any occasion' his conduct had fulfilled the description of keeper, manager, controller etc. In such establishments (though that was not the case here) there may well be a number of individuals associated with the premises and the activities therein for brief periods or, it may be, on one day only. It was clearly the legislature's intention that the control and elimination of such undesirable establishments should not be impeded by difficulties which might still be put in the way of proving such common law offences as the keeping of a brothel or a disorderly house."

34. In addition to the testimony of PW3 concerning the provision of the services of two prostitutes as a result of his telephone calls to the premises in which the applicant was found, there was also evidence that the police search resulted in the discovery of a tenancy agreement relating to the premises and in which the 1st applicant was named as tenant: The term of the tenancy was stated to be one of two years from 25 March 1991. The entries in the diary which we mentioned earlier commenced on 2 April 1991 and continued until 4 May, which was the day before the raid. We have already referred to the admissions made by the 1st applicant to the police.

35. In our view there was ample evidence to justify the judge in coming to the conclusion that the transaction described by PW3 was not an isolated incident but was one of a series which constituted proof that the premises had been operated as a vice establishment on a continuous basis. It follows that we do not consider that the 1st applicant's conviction was unsafe or unsatisfactory.

36. Notwithstanding our acceptance of Mr. Ground's submission that the evidence concerning the slips of paper found in Miss Cheung's handbag was inadmissible against the 1st applicant, we have not the slightest doubt that the judge would inevitably have come to the same conclusion in the absence of that evidence.

37. We therefore grant the 1st applicant's application for leave to appeal, treat the hearing as that of the appeal, apply the proviso and dismiss the appeal.

38. Mr. McWalters, who appeared for the Crown in this court, conceded that the evidence against the 2nd applicant was insufficient to establish persistent user as a vice establishment of the premises occupied by him. He therefore found himself unable to support that conviction. We think he was right to take that view. The evidence against the 2nd applicant fell far short of that which existed against the 1st applicant.

39. In the course of the hearing we therefore granted the application of the 2nd applicant and, treating it is the hearing of the appeal, allowed the appeal, quashed the conviction for keeping a vice establishment and set aside the sentence of 17 months' imprisonment which he had received in respect of that charge. His conviction and sentence for attempting to procure a girl under the age of 21 to have sexual intercourse, not having been made the subject of an application for leave to appeal, remain undisturbed.