THE QUEEN v. KWOK SHING WING AND OTHERS

No. 275 of 1988

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H E A D N O T E

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Vice establishment - collaboration in making notes - system as evidence of 'keeping' and user of premises

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 275 OF 1988

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J U D G M E N T

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1. 1st appellant was convicted of managing, and 2nd and 3rd appellants of assisting in the management of, a vice establishment; contrary to section 139(b) of the Crimes Ordinance, Cap, 200.

2. At midnight on 4th October last year two police officers, masquerading as genuine customers paid a visit to the Hong Kong Bath House in Jaffe Road, a licensed massage establishment. Their evidence was in almost identical terms. They were received by 1st and 2nd appellants, The latter escorted them to a changing room, where they had a shower and changed into shorts.

3. On their return to the lobby, 2nd appellant led them to a room with four beds and asked them if they had any "familiar hostesses". They said no and 2nd appellant said "Perhaps I will introduce two to you who are warmhearted," Asked in what way they, were warmhearted, 2nd appellant said "you will know after you have had a try". The officers agreed and lay down on adjacent beds. 2nd appellant left the room.

4. A few minutes later a woman entered the room, approached PC22442 and asked where she should start. He indicated his head and she began to massage him. Another woman then came in and asked PC4287 the same question. He told her to massage his back.

5. After about twenty minutes of massage the first woman asked PC22442 if they wanted to add more hours. He asked what this meant and she whispered "I will make you feel comfortable I will shoot the aeroplane for you." He understood her to mean masturbate but he agreed. She said". Apart from adding an hour I will charge you $50 extra." She explained that the hourly charge went to the company and she $50 to herself. He asked how he should pay the $50, since his money was locked in the changing room. She replied". When you settle the bill, you can pay it to Jim Suk (2nd appellant)". PC4287 was unable to hear most of this exchange. The massage continued as before.

6. A few minutes later 2nd appellant appeared at the door and asked in a loud voice if they wanted to add more hours. The woman massaging PC22442 said yes.

7. The woman massaging PC4287 then whispered to him "Boss, you add hour. Do you want to do something" There then followed a similar exchange about 'shooting the aeroplane', as described by the other PC. She promised he would feel comfortable if he agreed; in that case she would go and find a room. PC 4287 said all right and she left.

8. She returned soon afterwards and whispered something to the girl who was massaging PC22442 whose lower body at this stage was covered only by a towel. She put her hand under the towel and said "There is no room available outside. Shall I do it for you here?" The officer did not dissent and she began to masturbate him.

9. After a few minutes the PC said she was hurting him and asked her to stop. She did so, but said he would have to pay $50 extra nevertheless. She then continued to massage him normally.

10. Meanwhile PC4287's masseuse returned to his bed after the whispered conversation with the other woman which he could not hear. She told him that no other room was available and asked if she could do it there. Events took a similar course as in the other bed. When the PC asked her to stop; she also said he would still have to pay $50 extra. He said his money was in his wallet in the changing room and she explained that he should settle the bill at the counter after the massage. She said Jim Suk knew how to collect money. She then continued to massage the PC normally.

11. According to both officers, 2nd appellant reentered the room after a while and shouted that Nos. 25 and 29's time was up. Both women then left.

12. The officers, having showered and dressed, went to pay the bill. 2nd appellant gave them two chits for $152 headed 'Hong Kong Bath House' (P2-3) and a third small piece of paper with the figures 304+100=404 (P4). According to PC4237, whose evidence was more detailed, 2nd appellant told them that the massage charge was $76 per hour for each person. The charge for 'shooting the aeroplane was $50 each, which would go to the hostesses. The total was, therefore, $404.

13. PC22442 gave 2nd appellant five $100 notes, which he passed to 3rd appellant, who was sitting at the counter. The latter put $96 in a tray, which he handed to 2nd appellant. PC22442 took $30 from the tray, leaving the rest as a tips, and both officers left the premises.

14. At 2:30 a.m. they returned with their Inspector and the rest of the team. The appellants and the masseuses were identified and the exhibits recovered. Some slips similar to P4 (the small piece of paper) were seized, but these were not exhibited at the trial. Finally photographs of the premises were taken (P13 A-V).

15. That was the prosecution case. The defence called no witnesses but produced five photographs (D2-D6), which were admitted by the prosecution to depict the premises on 16th March 1988.

16. The trial concluded on 10th March. The magistrate delivered a written judgment on 21st March. He has subsequently compiled a shorter statement of findings, which adds little to the judgment.

17. He found that the police officers were truthful witnesses. They gave him the impression that they were "honest men trying accurately to recount that which transpired rather than dishonest men who had colluded to present a false picture to the Court."

18. He went on to say :-

"It's right to say these premises have the advantage of a massage licence, advertise themselves as such and that was a service the two prosecution witnesses initially sought and indeed received. These are matters I have taken into account in deciding whether or not the premises were wholly or mainly used for the purpose of prostitution. However, in my judgment I am also entitled to consider what evidence there is of system not only in determining the issue of 'keeping', but also in determining the use to which the premises are put. if the offer of. sexual services is so inextricably part of the legitimate massage service, that is something I can take into account in determining the use to which the premises are put.

In this instance I am impressed by the fact such offer of sexual misservice was not sought by the police witnesses but was gratuitously offered by the masseuses who were operating a system, because' in respect of any enquiry or possible problem they each had the same stock answer. Furthermore such evidence as there is of system I have to say is equally cogent to the issue of continuity or 'keeping' and I have to say that the idiomatic language used by the second Defendant; the manner in which the sexual services were offered and performed, the charge therefore and the fact such charges were not collected by the masseuses: culminating in the presentation and payment of a bill, which included an amount the exact equivalent of that amount which cannot, on the facts as I found them, be explained away as a tip, lead me to the conclusion there. was a system in operation by which sexual service were offered for money; paid for customers of the massage establishment and charged by that establishment in conjunction with the business they were licensed to conduct. In the premises, I am also satisfied, and find as a fact, that such system was so endemic to the lawful business of the establishment that those who were present on the premises, conducting the business of the establishment, must have been aware of what was going on."

19. The first ground of appeal concerns the similarity of the witness statements given by the two officers. It is submitted by Mr Cheng Huan, for the appellants, that this suggests collaboration by the witnesses.

20. The evidence of the officers was almost identical, except for the whisperings in their ears, which the other man obviously could not hear. The nature and predictability of the evidence was such that, provided the police were telling the truth, such similarity was to be expected.

21. I see nothing sinister in the fact that the witness statements are also similar, Some of the similarities are police jargon. Other phrases such as 'pose as customers' are natural and should occasion no surprise when used by each man. The rest is straight narrative which one would expect to be in similar language, particularly when related by two police constables.

22. Even if they have compared notes and have been less than frank in admitting it, though it reduces their credibility to some extent - Mr Cheng Huan has rightly pointed out discrepancies in their evidence in this respect - this does not mean that their evidence is untrue.

23. Indeed it would make good sense to compare notes as to their memory of the details before making (1) a formal statement. In v Bass⁽¹⁾Byrne J said at p. 686:-

"This court has observed that police officers nearly always deny that they have collaborated in the making of notes and we cannot help wondering why they are the only class of society who do not collaborate in such a matter. It seems to us that nothing could be more natural or proper when two persons have been present at an interview with a third person than that they should afterwards make sure that they have a correct version of what was said. Collaboration would appear to be a better explanation of almost identical notes than the possession of a superhuman memory. "

Both officers were cross-examined at length and I am satisfied that this is a matter that was best resolved by the magistrate who heard and saw the witnesses. He must have been alive to the possibility that they collaborated in the interests of accuracy; rather than that they colluded to present a false picture'.

24. The other ground of appeal is that there was no evidence that the premises were 'kept' as a vice establishment. Section 117(3) of the Ordinance provides :-

"Premises, vessel or any place shall not be treated as a vice establishment for the purposes of this Part unless

(a)     the premises vessel or place are or is used wholly or mainly by 2 or none women for the purposes of prostitution; or

(b)     the premises vessel or place are or is used wholly or mainly for or in connexion with the organizing or arranging of prostitution."

In particular Mr Cheng Huan points out that the evidence related to one isolated incident, whereas the bath house in question had operated for 27 years without any conviction of this nature had held a massage licence for 5 years and provided both masseurs and masseuses.

25. In R.v Wong Chi Hung⁽²⁾McMullin, V.-P. considered whether the premises had been kept for a forbidden purpose and said at p.7 :-

"[This element] 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 on 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 instrusion had brought the evidence to light." in R v Ho Chi Fai⁽³⁾ Barnes J. said at p.9:-

"Here it was conclusively proved that 'conduct of the' forbidden kind was going on on 31 August 1984. The numbers on the bills considered in conjunction with the conclusive evidence regarding the times of the visits by the two police 'customers' suggested that those documents were used in numerical order and that they were not ills prepared on the opening day of the 'recreation centre'. The layout of the premises and the furniture and fittings installed therein provided convenient accommodation for the routine practice of the type, of prostitution observed on 31 August 1984. The conclusive evidence of the conduct of those who found seating accommodation for the two customers that evening suggested that the principal recreation available could-not be enjoyed - at least for males - without the company of a female. The routine query about whether the newly arrived customer favoured a particular girl suggested that, whatever the recreation was, it had been available for 'a considerable time prior to the intrusion.' The conclusive evidence of the conduct of the girls suggested that at least one type of recreation available could only be enjoyed with prostitutes. The structure of the bill providing for the item 'Service Expense' as a variable, the handwritten entry of the number 32 and the price 82.30 alongside that item in respect of two customers who sat with different prostitutes at different tables but who were offered the same 'recreation' suggested that Service Expense number 32' was one type of 'service' routinely available at a set price at the 'centre'. All those circumstances were '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 time prior to the police intrusion'. Thus, even if the learned magistrate had been restricted to a consideration of the truncated version of the evidence herein set out he must still have found that the premises had been kept as a vice establishment."

26. The magistrate makes it clear that he was well aware that the establishment routinely offered legitimate massage I am satisfied that he has taken into account the house's good record. His findings as to system and the fact that sexual services were not sought by the officers, but were offered by the masseuses show that he has carefully considered whether the premises were used wholly or mainly for the purposes of prostitution, and were kept for that purpose.

27. In the absence of evidence to the contrary, I am not prepared to say that his conclusion was wrong.

28. There can be no doubt, in the circumstances, that all three appellants were well aware of what was going on and were properly convicted. This appeal is dismissed.

(1) [1953] 1 Q.B. 680

(2) C.A. No. 285/82

(3) Mag. App. 825/84