HKSAR v. LI, SUI FONG

HCMA37/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 37 OF 2009

(ON APPEAL FROM KCCC NO. 5586 OF 2008)

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J U D G M E N T

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1.  This is an appeal against a conviction for managing a vice establishment contrary to section 139(1)(b) of the Crimes Ordinance. 

2.  In order to prove their case, the prosecution must establish that the premises in question were used wholly or mainly by two or more persons for the purposes of prostitution. 

3.  The evidence in the case was all too familiar.  It involved two undercover police officers visiting the premises that advertised massage services.  The prosecution’s case was that the undercover officers were offered the opportunity of masturbation and steps took place to advance that end before a party of police officers arrived and arrested the Appellant.  The Appellant was working in the premises along with one other lady.

4.  All that was in dispute at the trial and formed the basis of the submissions made by the duty lawyer to the magistrate.  The point was never specifically taken there as to whether or not the use of the premises was wholly or mainly for the purposes of prostitution.  The premises in question are shown in a sketch plan and they consisted of, in effect, premises that were designed to be residential, with three bedrooms.  Two of the bedrooms had been kitted out as places to conduct massage.  They had proper massage beds and the like, and those were the two rooms where the prosecution alleged that the undercover officers went and the preliminary steps towards masturbation were taken.  The third bedroom had a double-bunk bed in it and there was also a living room and a bathroom and a kitchen. 

5.  The evidence demonstrated quite clearly that the Appellant and her 14-year-old son were living in the premises at the time.  It also was established that the 14-year-old son was present through the afternoon when these events took place.  One can see from photographs that were taken of the scene, along with what was found at the scene, that there were two uses being made of the premises.  One was the massage use and the other was use as a home for the 51-year-old Appellant with her previous clear record, and her 14-year-old son.  It is worthy of note that no condoms were found, no pornographic material, and the prosecution’s case was based solely on the offer of masturbation.

6.  There are very many points taken by the Appellant in the grounds of appeal but I need only focus on the one that concerns the use of the premises.  It is quite clear that the prosecution cannot establish that they were wholly used for the purposes of prostitution.  They argue that it was mainly so used.

7.  Looking at the evidence, I can see two uses here but I cannot see anything that drives me to the conclusion that the massage use with its offer of masturbation was the main use, rather than the use of the premises as a residence for mother and son.  The cases that have dealt with this in the past demonstrate that you cannot look at this question on the basis of size, geography, or just on the basis of time.  You have to use your common-sense and look at it in the round to work out what the main use of premises was. 

8.  What the prosecution had failed to do at the trial below, as I judge from the papers, was to demonstrate for sure that the main use must have been the prohibited one.  There were two uses here and nothing in the evidence demonstrates to me that you can characterise the prohibited use as the main use.  Indeed, if I had to go further than that, I would probably incline to the view that the greater use of the premises was as a home, but I do not have to say that in order to dispose of this appeal because the evidence leaves me with a reasonable doubt as to one of the important ingredients of the offence.

9.  Accordingly, I shall allow this appeal and quash the conviction.

10.  To anyone not familiar with our criminal system, it would probably be thought that the presence of a 14-year-old in premises where masturbation was offered would be an aggravation rather than a matter that aided a defence to the charge of keeping or managing a vice establishment.  All I can say is that I am well aware of that but I have to apply the law as the legislature have drafted it.  Anyone who looks for logic in this area of our law, I am afraid will come away empty-handed. 

11.  One last matter I will deal with was an argument based on the period of time when the alleged masturbation services were offered.  At that time, the Respondent sought to argue, the main use was the prohibited one.  This case is unusual because, at that very time, the 14-year-old was on the premises and he was using them as his residence.  It is that special fact that makes this case an easy one to decide.  The appeal is allowed.

(Submissions on costs)

12.  The Appellant was legally aided.  She had made a $1,000 contribution.  I shall make an order for costs in her favour in the sum of $1,000.