IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 651 OF 1993

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J U D G M E N T

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1. The appellants were convicted of managing a vice establishment, contrary to s.139(1) of the Crimes Ordinance.

2. Two plain clothes police officers, posing as customers, visited the Choi Sun Villa in North Point. They were invited by the appellants to come in and sit down. They were then asked what kind of girls they wanted. The appellants told them that local girls cost $400 and they could pay when they had finished. Two girls then appeared and escorted the officers to another villa on the same floor, where they each had a bath before the arrival of the arresting officers.

3. The facts : in this case were almost identical to those in R. v. Law Tin-ching MA No. 368/93. The following extract is taken from the judgment of Keith J.:

“ The question whether premises have been kept as a vice establishment involves two issues. First, were the premises a vice establishment? Secondly, if they were, were they kept as a vice establishment? There is a statutory definition on the first issue and authority on the second. As to the first issue, premises are a vice establishment for the purposes of s.139(1)(b), if, inter alia, they are ‘used wholly or mainly for or in connection with the organising or arranging of prostitution’ : see s.117(3) of the Ordinance. As to the second, in Wong Chi-hung v. R. [1982] HKLR 361, McMullin V.-P., delivering the judgment of the Court of Appeal, said at p.365 that what is required to prove that premises were kept as a vice establishment is :

‘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’.

He went on to add :

‘[That] 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.’

Those passages were approved and applied by the Court of Appeal in R. v. WAN Kiu-sang (CA 180/92). Similar sentiments were expressed by Fuad J. A. (as he then was) in R. v. CHONG Ming-chin (CA 294/84). He said :

‘An event which takes place once, or a number of similar events which take place on a single night may indeed be insufficient 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 of the surrounding circumstances 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.’

The first ground of appeal in this case reads as follows :

‘In coming to his finding of Guilt, the Learned Magistrate failed to consider whether it had been proved that the premises in question had been ‘kept’ as a vice establishment, and as a result made no ruling on this point, which was an essential element of the charge brought against the Appellant.’

What the magistrate wrote in para. 7 of his Statement of Findings was this :

‘It was submitted that this evidence of one occasion could not support the inference that the premises were used ‘wholly or mainly’ in connection with the organising or arranging of prostitution. Given the size of the villa [a sketch of which was exhibited], the presence at all material times of Lok and the [Appellant], the ease and speed of the provision of the two women who prostituted themselves, the choice of women offered, the enquiry as to whether the [police officers] had any familiar hostesses, the setting of the price and the general character of the conversation carried on between the [Appellant] and the [police officers], I was sure that there was ample evidence to support the inference.’

Having regard to the language which the magistrate used, I have no doubt that what the magistrate was addressing there was only the issue whether the premises were a vice establishment. In my view, there is no answer to the point made by Mr Dunn for the Appellant that the magistrate was not there addressing at all the issue whether the premises were kept as a vice establishment. Since the magistrate failed to consider whether that essential ingredient of the offence had been proved, this conviction must be quashed, and in the exercise of my discretion, I order that the Appellant be retried de novo before a different magistrate.”

4. In this case the grounds of appeal are the same. It is true that defence counsel submitted in his address :

“Crown have to show a pattern of persistent user. Although generally it requires use for a period of time, that can be proved rarely by isolated incident.

The circumstantial evidence must be for persistent user.

One has to look at the facts : no condom was found, that’s rather unusual.

There’s no ponograph shown on television.”

5. In his judgment and Reasons for Verdict however the magistrate deals only with the issues of “managing” and “used wholly or mainly for prositution”. He did not apparently address his mind to whether the premises were kept as a vice establishment. In these circumstance, for the reasons given by Keith J., the appeal must be allowed and the convictions quashed.

6. There was evidence on which the magistrate might have found that the villa was so kept. This lay in the conversation between the appellants and the officers, in particular questions by 2nd appellant as to whether the officers had come to “play” there before. It would have been a matter for the magistrate to decide if more than one inference could be drawn from this conversation. It is sufficient however to justify a retrial before another magistrate and I so order.