HKSAR v. MANG MAN KUEN AND ANOTHER

[Translation]
HCMA 1049/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1049 OF 2005

(ON APPEAL FROM KCCC 5848 OF 2005)

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JUDGMENT

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1.  After trial at the Magistrates’ Court, the 1^st Appellant Mang Man-kuen and the 2^nd Appellant William Tan were convicted of one count of managing a vice establishment and were each sentenced to 12 months’ imprisonment.  They now appeal against conviction and sentence.

2. The two Appellants’ grounds of appeal against conviction are by and large the same:

(1)     The magistrate failed to address, whether adequately or at all, the issue of whether the premises in question had been “kept” as a vice establishment.

(2)     The magistrate neither considered whether at the material time the “sauna” premises in question were used wholly or mainly as a vice establishment, nor took into account the fact that the “sauna” also occupied the 12^th floor and that normal massage service was provided on both 11^th and 12^th floors.

(3)     The conviction was unsafe and unsatisfactory.

3. The two Appellants’ grounds of appeal against sentence are as follows:

(1)     The magistrate failed to take into account the small scale of operation of the establishment, and the sentence was manifestly excessive.

(2)     The 2^nd Appellant was a waiter who followed the 1^st Appellant’s instructions to greet customers and had never played an active part in selling sexual service.

4. The relevant facts of the case are as follows:

5. PW1, PW2 and PW3 were police officers.  On the day of the offence, they posed as customers and went separately and at different times to the premises where the “sauna” was located.  Subsequent investigation revealed that there were bathrooms, sauna rooms and six partitioned rooms at the premises.

6. PW1 arrived at the scene at 2.25 p.m.  The 1^st Appellant came forward and received him, and then the 2^nd Appellant arranged for him to take a bath.  Afterwards, PW1 asked the 1^st Appellant how much it was for a bone massage.  The 1^st Appellant said, “$320 for the hand job, $460 for the blow job and $660 for the full course”.  Later on, the 1^st Appellant explained to PW1 what services they represented and then led PW1 into a room.  Inside the room was a masseuse, who introduced the various services mentioned above to PW1.

7. PW2 arrived at the scene at 2.35 p.m. and he was also received by the 1^st Appellant.  The 2^nd Appellant arranged for him to take a bath.  Afterwards, the 2^nd Appellant told him that both local girls and Mainland girls were available and suggested that he would get him a local girl.  The 2^nd Appellant left the room and returned shortly afterwards, telling PW2 that he had found a girl for him and that the girl was waiting for him inside a room.  When PW2 asked the 2^nd Appellant about the charge, the 2^nd Appellant said, “$320 for the hand job, $460 for the blow job and $660 for the full course including love-making”.

8. PW3 arrived at the scene at 3 p.m., and he was also received by the 1^st Appellant.  Likewise, the 1^st Appellant introduced to him the various services and the charges as mentioned above.  After PW3 entered a room, a masseuse introduced to him once again the various services and charges.

9. Later, a team of police officers arrived at the scene with a search warrant and conducted a search of the premises.  They found a total of 21 condoms in five of the partitioned rooms.  When the masseuse inside the room saw the police officers who were making a search, she immediately took out four condoms from her pocket and told PW1 to hide them away for her.

10. Both of the Appellants elected to give evidence.  The 1^st Appellant admitted that she worked as a manageress there, whereas the 2^nd Appellant said he worked there as an attendant.  They both denied they had introduced sexual services to the prosecution witnesses or had uttered the words as alleged by the prosecution witnesses.  They both said that their company was providing normal massage service and that their company forbade anyone from conducting any immoral transaction at the premises or bringing condoms back there.  The witnesses summoned by the Appellants also testified that no immoral transaction was conducted there.

11. In the verbal reasons for verdict, the magistrate said that all the prosecution witnesses were honest and reliable, and he accepted all their testimony as a true account of the course of events at the material time.  On the other hand, the magistrate found the two Appellants and their witnesses unreliable and rejected their evidence.  The magistrate took the view that they had not given the court a true account of what had happened on the day of the offence.

12. Upon the evidence that he had accepted, the magistrate convicted the two Appellants of the offence charged.

13. Mr Ma, Counsel for the 1^st Appellant, submitted that the magistrate only analyzed whether the premises in question had been used as a vice establishment at the material time, and thereafter held that the premises had wholly or mainly been used as a vice establishment, but failed to consider whether the premises had been “kept” as a vice establishment.  Mr Ma argued that, in order to show that the premises had been kept as a vice establishment, the prosecution had to prove that the premises had, for a considerable period of time prior to the material time, been used as a vice establishment.  In support of his argument, he cited a few cases including Wong Chi Hung and others v R [1982] HKLR 361, HKSAR v Wong Ming Chu HCMA 1127/2004 and AG v Tang Ping Wing [1982] HKLR 1. Mr Ma placed particular reliance on the following passage from McMullin VP’s judgment in Wong Chi Hung:

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 (paragraph (a)) or in relation thereto or (paragraph (b)) that he was seen 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.

…

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.  If it is established, it is necessary to show, in addition, as against the person charged, only that his connection with the premises was such as to lead beyond reasonable doubt to the conclusion that he knew the nature of the activities and has given support to them …  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.

14. Mr Ma argued as follows: In Wong Ming Chu, Pang J also agreed that the word “keeping” connoted continuity.  Therefore, the magistrate should have dealt with the element of “keeping” before addressing the issue of whether the Appellants were “managing” the establishment.  Failure to do so would bring about the very consequence that had occurred in HKSAR v Yeung May-ling HCMA 1024/2005 and R v Li Kin Cheong [1996] 3 HKC 422, namely that the Appellants could not be convicted of managing a vice establishment or, if they had been so convicted, the convictions would be unsafe and unsatisfactory.  Mr Ma contended that the magistrate had not given any thought to this point.  The prosecution evidence only supported the events on the day of the offence, and there was no evidence whatsoever on the user of the premises prior to that day, let alone any evidence to prove that the premises had been used as a vice establishment for a period of time prior to the police operation.

15. Mr Wong, Counsel for the 2^nd Appellant, also submitted that the magistrate had failed to consider the element of “keeping”.  He pointed out that, in the verbal reasons for verdict, the magistrate, having dealt with the issue of whether the premises had been used as a vice establishment at the material time, proceeded to the issue of “managing” without making any mention of “keeping”.  Likewise, in the statement of findings, although the magistrate did carefully and meticulously consider the evidence and the issues of whether the premises had been used as a vice establishment and managed by the Appellants, he did not address the issue regarding “keeping”.  His omission in this respect is therefore apparent.

16. Mr Wong of Counsel added that the sauna premises occupied two storeys, namely the 11^th and 12^th Floors, and normal massage service was offered on the 12^th Floor.  Mr Wong contended that, in considering whether the sauna premises had wholly or mainly been used as a vice establishment, the magistrate failed to take into account the fact that the 12^th Floor was not used as a vice establishment.  Therefore, the conviction is unsafe and unsatisfactory.

17. According to Wong Chi Hung, in order to prove that certain premises have been kept as a vice establishment, the prosecution must adduce evidence sufficient to show a pattern of main user, and this usually involves some degree of persistence of user that went beyond a single transaction.  In other words, in the absence of other supporting evidence, a single transaction is not sufficient to show that a pattern of main user of the premises as a vice establishment.  However, McMullin VP also said:

The first of those elements, no doubt, will usually by 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 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.

18. It can be seen from the above that, where there is other supporting evidence such as books of account, the layout of the premises, registers, documents and the like, a single raid is sufficient to prove this point about user of the premises, provided that the only conclusion which can be drawn from such evidence is that some forbidden conduct was not only going on at the premises at the time of the police raid, but also the premises had, for a considerable period prior to the police raid, been used as a place where such conduct was carried out.

19. If there was evidence that different customers visited the premises more than once and at different times to engage in immoral transactions, then this must be evidence of repeated prostitution at the premises, and the time interval between every two transactions would be immaterial.  If this was further supported by circumstantial evidence, then all the evidence would be sufficient to prove that the main user of the premises was as a vice establishment and that the premises were kept as a vice establishment.  As I have noted in Li Kin Cheong, apart from evidence of immoral transactions, other evidence could also serve to prove that the premises had been kept as a vice establishment.

20. The evidence in the present case showed that, during the various time intervals prior to the police search, the two Appellants had conducted sexual services transactions with the three police officers individually inside the premises.  There were bathrooms, massage rooms and 6 partitioned cubicles at the premises.  During the police search, a number of condoms were found in five of the cubicles.  Condoms were also found in the pockets of the dress worn by the masseuse, who hastily concealed the condoms upon seeing the police officers who conducted the search.  The only conclusion that could be drawn from such evidence was that the pattern of main user of the sauna premises was one of being kept as a vice establishment.

21. According to the notes of proceedings, at trial before the magistrate, Mr Kwong, the solicitor acting for the Appellants, cited Wong Chi Hung in his final submissions.  He said the Court of Appeal in that case noted that, in order to establish the offence, evidence would be required to show that the premises had been used as a vice establishment on a continuing basis.  Mr Kwong said the sauna premises were used on a continuing basis for providing lawful massage service.  If the premises had not been a vice establishment, then the 1^st Appellant and/or the 2^nd Appellant could not have kept a vice establishment.  The magistrate had discussed this point with Mr Kwong in court.

22. In his verbal reasons for verdict, the magistrate had this to say:

Defence counsel submitted that, even if the court accepted such evidence in its entirety, it would not be sufficient to support the conclusion that the premises were a vice establishment.  With respect, I do not agree.  The three men went there individually at different times.  Each of them asked a very simple question, and one of them expressly asked for a bone massage, but in each case you did not say anything about the price for a bone massage.  Instead you immediately talked about ‘hand job’, ‘blow job – cold and hot inclusive’ and ‘full course’.  From this the only conclusion that can be drawn is that only such kind of service was being provided there.  Actually, the subject matter of your conversation was such sexual services.

Furthermore, condoms were found inside the premises.  As a matter of fact, there were condoms in each of the partitioned rooms.  And the evidence shows that PW1 saw the masseuse take out 4 condoms from her work bag as soon as she became aware of the presence of police officers who were to conduct a search.  If the premises had nothing to do with such sexual service, I do not see why it was necessary to have the condoms there.

…

Defence counsel referred me to a decided case.  I also have had the opportunity to refer to other decided cases, which clearly held that a single transaction can, taken together with other circumstantial evidence, be sufficient to prove that the premises have been used as a vice establishment.  In the present case, I hold that the circumstantial evidence is sufficient for the court to arrive at the only conclusion that the premises had been used as a vice establishment where prostitution was arranged.

23. In HKSAR v Ma Pik Ki [2004] 3 HKC 268, McMahon J noted that, although the magistrate is not obliged to record in his reasons for verdict every legal principle present in his mind and how he applied each principle in the course of arriving at his findings in a particular case, the reasons for verdict must at least demonstrate that he has considered each element of the offence in question and, where proof of an element is at issue, state whether that element has been proved and the reason(s) therefor.

24. As can been from the notes of proceedings, the magistrate, having heard Mr Kwong’s submissions, was fully aware of the legal requirements of the offence.  As a professional judge, he would certainly have thoroughly considered the issue of “keeping” before he gave his verdict.  Although he did not expressly state in his reasons for verdict that he had considered the element of “keeping”, he did point out in the above excerpt from his reason for verdict that a single transaction was insufficient to prove that the premises had been kept as a vice establishment, but if there was other circumstantial evidence, then the onus of proof in this regard could be discharged.  He also mentioned the circumstantial evidence, including evidence that three transactions were conducted at the sauna premises at different times of the same day, that the premises were partitioned, that condoms were found in the partitioned rooms, and that the masseuse reacted in a particular way when she saw the police officers who were about to conduct a search.  This shows that the magistrate, in arriving at the conclusion that he did, had taken into account all the facts and relevant legal principles and elements, including the element of “keeping”.

25. In my view, the magistrate had not neglected the element of “keeping”, and neither his verbal nor his written reasons for verdict deviated from the requirements laid down in Ma Pik Ki in relation to reasons for verdict.

26. The magistrate had also fully considered the question of whether the sauna premises had wholly or mainly been used as a vice establishment.  Though two of the three policemen had received massage service at the premises, this did not necessarily mean the premises were wholly used for providing massage service, because sexual service was also provided there at the same time.  The fact that both massage and sexual services were provided there did not necessarily mean that the premises were not wholly or mainly used as a vice establishment.  On the evidence, the magistrate was entitled to find that the sauna premises had wholly or mainly been used as a vice establishment.

27. The search warrant authorized the police to search the 11^th and 12^th Floors of the building where the “sauna” was situated, but it was the sauna premises on the 11^th Floor which were described in the charge as the premises used as a vice establishment.  The business address of both the “sauna” and the massage parlour, as stated in the respective licences, was the 11^th Floor.  All the evidence showed that prostitution took place on the 11^th Floor, and there was nothing to show that massage service was provided on the 12^th Floor.  In the circumstances, the magistrate did not err in focusing on the 11^th Floor when he considered whether the “sauna” premises had wholly or mainly been used as a vice establishment.

28. For the above reasons, I am satisfied that the two Appellants’ convictions were neither unsafe nor unsatisfactory.  Their appeal against conviction is accordingly dismissed.

29. Turning to the appeal against sentence, the vice establishment in the present case occupied the whole of the 11^th Floor.  It comprised six partitioned rooms and 12 beds, and no fewer than six persons were there to provide services.  It cannot be described as a small-scale operation.  Although the 2^nd Appellant was an attendant, the evidence showed that he worked with the 1^st Appellant in arranging for customers to take showers and enter the rooms, and also in introducing various kinds of sexual services to the customers.  His criminal acts were similar to those of the 1^st Appellant.

30. In considering the two Appellants’ sentences, I have referred to the following authorities:

(1)     In 1998, in HKSAR v Ng Tsz Fung HCMA 800/1998, Nguyen J cited a 1988 case of R v Kwan Wah Sang MA 1324/1988 and adopted 6 months’ imprisonment as the starting point.

(2)     In 2001, in HKSAR v Lee Tang Yau HCMA 602/2001, which involved 8 illegal immigrants providing sexual service at a vice establishment that comprised 7 rooms, the magistrate adopted 12 months as the starting point, and on appeal,  Beeson J refused to interfere with the sentence.

(3)     In 2004, in The Secretary for Justice v Lee Cho Keung and 7 others CAAR 2/2003, the vice establishment occupied three floors and consisted of 22 rooms, and the prostitutes included female visitors from the Mainland on the strength of “two-way permits” as well as a girl aged 16.  The Court of Appeal held that the starting point for the supervisor of the establishment should be 3 years whereas the starting point for the cashier and the person-in-charge should be 2 years.

(4)     In 2005, in HKSAR v Lam Sze Kei & another [2005] 3 HKLRD 273, the vice establishment occupied the whole of the mezzanine floor and the roof top of the mezzanine floor of a building, and no more than 10 prostitutes and five employees worked there.  Deputy High Court Judge To held that there was nothing improper in the 12-month starting point that the magistrate had adopted.

(5)     In 2005, in HKSAR v Cheung Chiu Choi & another HCMA 531/2003, the vice establishment allowed brothel-goers to choose from 7 prostitutes who assembled in the hall.  Deputy High Court Judge Barnes noted that the case Ng Tsz Fung could no longer be applied nowadays because the case of Kwan Wah Sang cited therein was from almost 20 years ago.  The Judge held that the 15-month starting point adopted by the magistrate was excessive and reduced it to 12 months.

(6)     In 2005, in HKSAR v Lee Yan Shui HCMA 484/2005, where the vice establishment comprised 3 partitioned rooms, Tong J decided not to disturb the sentence imposed by the magistrate who had adopted 12 months as the starting point.

31. It is apparent from the cases cited above that, for this kind of offence, an appropriate starting point is usually 12 months, unless the scale of operation of the vice establishment was particularly small or unless there are other mitigating factors.  In the present case, in light of the scale of the “sauna” establishment, the 12-month starting point adopted by the magistrate is neither wrong in principle nor manifestly excessive.  I do not see any special factor which justifies a reduction in the 12-month imprisonment to which the two Appellants have been sentenced.  I dismiss the two Appellants’ appeal against sentence accordingly.