THE QUEEN v. LAU SHUN DICK AND OTHERS

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1419 of 1989

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BETWEEN

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JUDGMENT

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1. The 1st appellant was convicted on a charge of managing a vice-establishment and the 2nd and 3rd appellants on charged of assisting in the management of a vice - establishment.

2. The appellants were arrested on the 3rd May 1989, and on the 4th May 1989 appeared unrepresented before a mmagistrate, Mr Crawshaw. They appeared again before Mr Crawshaw on the 23rd June 1989, at which time the 1st appellant was represented by counsel, and the 2nd and 3rd appellants were unrepresented.

3. I am told that it is not in dispute that prior to the hearing on the 23rd June 1989, the 2nd and 3rd appellants were advised by a police officer that the prosecution intended to offer no evidence against them. A letter to this effect dated the 20th June 1989, signed by police inspector T.S. Smith, was sent to the South Kowloon Magistracy. There is nothing on the record of the proceedings before Mr Crawshaw on the 23rd June 1989 which makes reference to this letter, but I am told that the magistrate suggested to the prosecution that they seek legal advice before formally offering no evidence against the 2nd and 3rd appellants.

4. Support for comes from the record in that pleas of not guilty were entered in respect of the three appellants and a date for hearing was set.

5. On the 11st August 1989, the parties came before Mr A.R. Wright, the 1st and 3rd appellants being represented by Mr Bernard Chung and the 2nd appellant by Mr Jackson Poon. Again pleas of not guilty were recorded and the trial commenced.

6. Mr Wright is recorded as having asked the prosecution about the letter of the 20th June 1989, to which the prosecutor responded that he had been directed to proceed. There is then a note that because the matter could not proceed further and as counsel were not available on the 14th August 1989, the trial was to cease and to be heard de novo before another magistrate.

7. The second trial started on the 17th October 1989 before Mr K.J. Townsley and again the appellants were represented by counsel who had appeared on the 11th August.

8. After trial the appellants were convicted as charge and they now appeal against those convictions.

9. The appeals first came before O'Connor J. at which time they were adjourned, it seems because the letter of the 20th June 1989 had come to light and it was necessary for Mr Shum, who appeared for the Crown, to investigate the matter. At the restored hearing the matter was again adjourned pending the judgment of the Court of Appeal in R. v. Edward Christopher Harris, a judgment which it was thought could be relevant to the appeals.

10. Mr Shum had initially been prepared to concede the appeals against the 2nd and 3rd appellants on the basis of the contents of the letter. O'Connor J. did not however consider he was in a position to accept such concession

11. In the appeals before me, Mr. Coghlan, who appeared for the Crown, advised that a decision had been made to contest all of the appeals.

12. The 1st appellant's first ground of appeal is that it was unfair for the prosecution to adduce evidence against the 2nd and 3rd appellants, bearing in mind the contents of the letter and that if no evidence had been offered against the 2nd and 3rd appellants, the defence of the 1st appellant would no doubt have been conducted differently; and that the magistrate ought to have investigated the circumstances surrounding the letter, and determined whether there could have been an abuse of the process of the court. It was also pleaded that there was a likelihood that the magistrate's finding of guilty in respect of the 1st appellant might have been influenced by evidence adduced against the 2nd and 3rd appellants, and that there was a material irregularity at the trial in the form of a written communication between the prosecution and the bench without evidence that such a ommunication was made known to counsel.

13. In respect of the last point, Mr Cheng Huan, who appeared for the 1st appellant argued that there was a secret communication between the prosecution and the magistrate acting in his capacity as a jury and that any subsequent trial was therefore tainted.

14. Mr Macrae, who appeared for the 2nd and 3rd appellants associated himself with the submission made by Mr Cheng Huan in relation to this first ground of appeal. Although as I have said, there is nothing on the record of what transpired before Mr Crawshaw on the 23rd June 1989, I am satisfied that the inference can be drawn that he was not prepared to act upon the letter of the 20th June. It was entirely proper for him to take that stance.

15. The 1st appellant was represented at that hearing and at the subsequent hearings which took place. After the hearing on the 23rd June 1989, the 2nd and 3rd appellants appeared with counsel at the next hearing and were clearly ready to proceed to trial. I am satisfied on what appears in the record and from the appearance of counsel, that counsel were aware at that time that the Crown had resiled from the decision to offer no evidence. The decision in the Edward Christopher Harris case confirms that the Attorney General was entitled to make such decision, and that it was not an abuse of the process of the court to do so.

16. While I have to say that the appellants, through no fault of their own, have been put to considerable inconvenience and expense by such decision, the Crown was entitled to proceed in the way it did. I am satisfied that there is no validity in the argument that the enquiry by Mr Wright about the letter was in any way a secret communication which led to unfairness in the trial of the 1st appellant; nor can I agree that the magistrate's finding in respect of the 1st appellant might have been influenced in some way by the evidence adduced at the trial in which the 2nd and 3rd appellants were defendants.

17. The evidence from the police officers as to what took place during their visit to the massage establishment would have been precisely the same whether or not the Crown had proceeded with the charges against the 2nd and 3rd appellants.

18. I am satisfied that there is nothing in this ground of appeal.

19. The 1st appellant's other ground of appeal is that there was no reason for the magistrate to, on the one hand accept that the 1st appellant had made a verbal confessionto the police to the effect that she was in charge of the premises, and on the other hand, to reject the content of the cautioned statement made by the 1st appellant. It is true that the preamble to the cautioned statement made no reference to the verbal admission of the 1st appellant that she was in charge, and that in response to the caution, she is recorded as having said that she only collected the money for someone else. In answer to questions from police sergeant, she said she had been asked by miss Ting at about 7 p.m. to go to the sauna to collect the money because Ah Ming had left owing to a stomach ache.

20. From the evidence of the prosecution witnesses, it could be inferred that Ah King was the man in charge when PW2 went to the premises on the 1st of May, and when PW2 and PW4 visited the same premises on the 3rd May. Ah Ming was not in the premises when the raid took place. It was the evidence of the prosecution witnesses that the 1st appellant was there at the time of the raid doing the same job that Ah Ming had done earlier. In my view, even if the magistrate had accepted the contents of the cautioned statement, he would have come to the same conclusion, that is that the lst appellant was, at the time of the raid, the person in control of the premises. There is no reason for me to interfere with the magistrate's finding on this point. The appeal of the 1st appellant against conviction is therefore dismissed.

21. Mr Macrae for the 2nd and 3rd appellants takes issue with the way in which the magistrate expressed in his statement of findings his view of the defence case put to PW2 and PW4. I do agree that the magistrate expressed himself unhappily when he made reference to "nit-picking" and to "wasting of the court's time".

22. The defence case put to the witnesses was that the police. officers had received a massage and nothing more. it was therefore the duty of defence counsel to test the credibility of the prosecution witnesses in cross-examination, and in my view, they should not have been criticised by the magistrate for doing so.

23. Mr Macrae pointed to two matters in the evidence of PW2 and PW4 and submits that if the magistrate, instead of scornfully dismissing the cross-examination, had taken time to consider in detail these two matters, he may well have come to a different conclusion as to the truthfulness and reliability of PW2 and PW4.

24. The first point relates to the evidence as to the time taken in completing the various events which the prosecution witnesses said took place; and the second to details given by the two witnesses as to how the money was paid. It is true that there were some inconsistencies in this evidence, but they are not such as to convince roe that the magistrate was wrong to accept the evidence of the, police officers as true. The appellants elected not to give evidence as was their right, but this election did result in the magistrate being left with the credibility of the police officers to assess only on the evidence that he had before him. I can't say he was wrong to make the findings that he did based on that evidence.

25. I turn now to consider whether the magistrate was right to find that the 2nd and 3rd appellants were assisting in the management of a vice-establishment. Mr Coghlan does agree that in the past it has been unusual for prosecutions to be pursued against women found providing sexual services in vice-establishment. This would, seem to be in line with the judgment of Lord Parker in Gorman V. Standen [1963]3 All E.R. 627 where it was said"I take it that it must be right that the mere fact that a woman participates in the. activities being conducted in the brothel does not make her a person assisting in the management of a brothel."

26. In R. v. Chang Mu Hua & Ors. M.A. 1172 of 1988, Bewley J. Summarised the position then prevailing in Hong Kong when he said at p.3 :-

"Counsel for the respondent does not support the. convictions of 4th, 5th and 6th appellants. It is rare for prostitutes working in massage parlours to be prosecuted, unless they are also acting as ushers, or otherwise exercising some degree of control in the running of the establishment, as in R. v. Kung Oi-ho CA 747/85. This accords with the line of authorities commencing with R. v. Gorman & Parker (1964)1 QB 294 and including R. v. Tam Kim-leung CA 1081/81. All stress the need to prove a measure of control, as in the case of a cashier or usher, but not a menial employee like a cleaner or the prostitute herself."

 

27. I am told by Mr Coghlan and the decision to proceed against the 2nd and 3rd appellants was taken because they are mature women who could not be said to have been pressured into working in the establishment. It might well of course be that the 2nd and 3rd appellants were pressured by financial or other constraints into doing what they did, but that is beside the point. The issue is whether they were assisting in the management.

28. In the case of Christine Elliott & Anr. v. D.P.P. and Ionna Dublidis and Ors. v. D.P.P., The Times, 17th January 1989, the Divisional Court gave a more detailed consideration of what acts by a prostitute might amount to assisting in the management of a brothel. It was on the authority of this case that the magistrate relied in convicting the 2nd and 3rd appellants when he said that the appellants fell squarely within the principle of Elliott & Anr. v. D.P.P. by pushing the existence of the vice activity to the police customers and stipulating the price therefor.

29. In respect of the first appeal before the Divisional Court, the facts were that the brothel was owned by a Mr Patel, who did not work at the brothel, he or his agent simply called at the premises from time to time to collect the takings. The appellants had keys to the premises; they greeted the clients; they described to the clients the sexual favours which were available; they negotiated the price for those services; they collected the payments and from those payments they paid Patel 05 for each visit. There was no cashier receptionist or manager in the premises. One of the appellants wrote out the receipts for payment and the appellants also did cleaning work and made coffer for the clients.

30. In the second appeal, three of the appellants admitted to being employed as masseuses and to offering customers sexual services for which they had each received and retained payment. Two admitted to having keys to the premises. There was a receptionist at the premises who received and booked the customers.

31. In delivering the judgment of the court, Taylor L.J. said :-

"Clearly if the appellants had been doing no more than sweeping up and making tea, it could not possibly be said that they were assisting in the management. For my part I would also hold that if one of the appellants was simply in a cubicle awaiting the attendance of a customer, was then sent a customer for a purpose which had been agreed by someone in the management, afforded the service required and then the customer returned to whoever was in charge on behalf of the management to deal with the financial side, then that appellant would, in the words of Lord Parker, 'simply be participating in the activities being conducted in the brothel' and that would not make her a person assisting in the management. She would not then be doing anything other than providing without any discretion the service for which the customer had agreed to pay.

He went on to find, in respect of the first appeal, that the appellants were clearly more than participating in the activities being conducted in the brothel in the sense of the sexual acts; that they were clearly having a say in the running of the business. In the second appeal, the learned judge found that although there was a receiptionist at the premises, the girls were responsible for making the decisions as to what acts, if any, were to be performed, and for negotiating the price for the services; such payments were made to them and they kept the money.

32. He said "I have no hesitation in saying that in the present two cases, the activities performed by the appellants did amount to assisting in the management."

33. He then turn to answer the questions which had been specifically directed to the court. The first question in respect of the first appeal being -

"Is the performance of the following acts evidence of assisting in the management of premises for the purposes of s.33 of the Sexual offences act 1956 -

 

He said :-

"In answer to that question in that form I would say that merely to perform the acts under sub-paragraph (a) would not be sufficient but that the aggregate of the acts in (b), (c) and (d) would be sufficient, and were in this case sufficient."

 

34. The second question posed in respect to the first appeal was : "Is some evidence of control or a say in the running of premises essential before a court can find that a person can be found to be 'assisting in the management'?" He said "To that I would say, yes, and that was found in the present case."

35. In respect of the second appeal, the questions and answers were :-

36. In this appeal, it was the evidence of PW2 that he had visited the Alice Sauna on the 3rd Floor, 11 Hart Avenue, on the 1st May 1989. He was greeted by a male Ah Ming and was shown to a changing room and then to a bedroom where he waited for a massage. The 3rd appellant came to the room and told him that besides bone massage, "shooting the aeroplane", a euphuism for masturbation was also available, and she told him the rate for such service. He agreed to the offer and she duly masturbated him.After this, went to the counter where Ah Ming made out the bill and collected the payments.

37. On the 3rd May 1989, PW2 and PW4 went to the Alice Sauna. They were greeted by Ah Ming who showed them to the room. The 2nd appellant serviced PW2 and the 3rd appellant serviced PW4. The 2nd appellant asked PW2 if he wished to feel soft, he asked what was meant and was told "shooting the aeroplane" and that the price was $100. PW4's evidence was that the 3rd appellant asked him while he was being massaged, if he wanted to be masturbated and she told him the price was $100. Subsequently PW2 and PW4 went to the counter where the 1st appellant was paid the money for the services that had been provided.

38. The magistrate was satisfied that the 1st appellant was the person in control at the time of the raid and I don't doubt that if he had been required to do so, he would also find that Ah Ming was in charge on the 1st May and when. the police officers first went to the premises on the 3rd May. The 2nd and 3rd appellants only came onto the scene after Ah Ming had directed them to the rooms and they were not involved in anyway in the collection of payments. The inference can be drawn from the evidence that the 2nd and 3rd appellants were paid by the management.

39. The facts of the case therefore place the acts of the 2nd and 3rd appellants some where between the woman who simply performs the lewd act and the one who in addition to those acts performs the other acts set out in paragraphs (b), (c) and (d) in the questions posed to the Divisional Court.

40. The 2nd and 3rd appellants did advise PW2 and PW4 of the availability of masturbation and they told them the price for this service. I am satisfied that this was a set price fixed by the management and that they had no power to negotiate the price in any way. They did not receive payment from the customers, this was done by the manager present at the premises and they were paid by the management. It was the manager who made out the bills, collected payment and paid the masseuses.

41. In the first of the appeals in Elliott it was the aggregate of the acts listed in (a), (b), (c) and (d) which Taylor L.J. said would be evidence of assisting in the management this included the accepting of payments from customers and paying money out of those payments to the management. In respect of the second appeal where there was a receptionist at the premises, it was the acceptance and retention of the payments in addition to the lewd acts which the court considered to be evidence of assisting. The physical involvement of the woman in the financial side of the dealings with the customers was therefore a matter which the Court in Elliott's case considered to be of importance. This is an element missing from this appeal and distinguishes it from the facts in Elliott's case. Mr Justice Henry, in agreeing with the judgment of Taylor L.J., went on to say :-

"It seems to me that these girls were not just participants in the activities that made these premises brothels. They in fact controlled those activities."

 

42. On the facts of this case it cannot be said that the 2nd and 3rd appellants controlled the operation of the vice establishment, nor that their activities within the establishment were such as to show a degree of control or say in the operation amounting to assisting in the management.

43. The appeals against conviction by the 2nd and 3rd appellants are therefore allowed. The convictions are quashed and there will be an order that the fines be repaid.